Criminal Law Notes La

1|Page Lemuel Abishua
Criminal Law I
Introduction
 Objectives of Criminal Law
 Characteristics of Criminal Law
 What is a crime?
o A crime is an offence which is prohibited by law and injurious to the public good and
which is enforced by courts and prosecuted by the State.
o A crime is also an act or mission committed or omitted in violation of public
o All crimes are created by parliament through statutes
o A person cannot be held guilty of an act or omission which was not a criminal offence
on the date of omission or commission.
 There are misdemeanors and felonies
o Misdemeanors are
o Felonies are
 What is criminal law for?
 History of criminal law
o There were few criminal offences and which were mainly based on compensation for
the offence
o As time went on and offences increased, society begun to view these offences as pubic
wrongs rather than just private matters.
 A person who is alleged to have committed a crime is referred to as a suspect.
 As a general rule, suspects are arrested by the state through the police at the instigation of the
complainant. After the arrest, the suspect is charged in an independent and impartial court of
law whereupon he becomes the accused.
 Criminal cases are generally prosecuted by the state through the office of the Attorney General
 (AG) hence they are framed as R (the State) v. Accused E.g. R v Kamenchu
 If the accused pleads not guilty, it is the duty of the prosecution to prove its case against him
by adducing evidence i.e. the burden of proof in criminal cases is borne by the prosecution.
 The standard of proof is beyond any reasonable doubt i.e. the court must be convinced that the
accused committed the offence as charged.
 In the event of reasonable doubt, the accused is acquitted. If the prosecution proves its case,
i.e. discharges the burden of proof, then the accused is convicted and sentenced.
 The sentence may take the form of:-
1. Imprisonment
2. Fine
3. Probation
4. Capital punishment
5. Community service
6. Conditional or unconditional discharge
Sources of Criminal Law

 Judicature Act
o It prescribes the sources of law in Kenya
 Constitution
o Article 25 – Fundamental Rights and Freedoms that may not be limited
 These are rights which are fundamental freedoms which the State cannot limit.
o Article 49 — Rights of arrested persons.
o Article 50 — Fair hearing
o Article 51 — Rights of persons detained, held in custody or imprisoned
o In the case of R v. Jecinta Wairimu, the court upheld articles 49 & 50 of the
Constitution
 Legislation/Statutes/Acts of Parliament
o By virtue of the principle of legality, nullum crimen sine lege, nulla poena sine lege,
as embodied in Article 50(2)(n) of the Constitution, all criminal offences are defined
by legislation. All offences of this kind are called statutory offences and so all criminal
offences in Kenya are statutory offences
o Criminal Procedure Code CAP 75
o Penal Code CAP 63

o International Crimes Act
 Common Law
o As discussed above, by virtue of the principle of legality, nullum crimen sine lege, nulla
poena sine lege, as embodied in Article 50(2)(n) of the Constitution, all criminal
offences are defined by legislation. This therefore excludes common law offences
 Customary Law
 International Law
o Rome Statute
Elements of a Crime
 A crime or offence has several elements
o The general rule is that a person is not criminally liable for an offence unless it is
established by concrete evidence that he committed the offence voluntarily and with a
blameworthy-mind.
o This is the cardinal principle of criminal law and is encapsulated in the maxim – actus
non facit reum, nisi mens sit rea (an act does not make a person legally guilty unless
the mind is legally blameworthy)
 This principle brings to fore 2 constituent elements of an offence – actus reus
and mens rea
Actus Reus Elements

 The actus reus is constituted as a voluntary act, deed, commission or omission, or even in some
cases the occurrence of an event in which the defendant is involved that includes surrounding
circumstances the consequences and due to the results of the act or omission and/or constitutes
the physical components of a crime
o However, in the case on0f Emma d/o Mwaluko v Republic it was held that however
harmful or reckless an act may be, it does not constitute an offence unless the law has
forbidden it. This takes us back to the principle of legality
Commission
 The physical act is the most common basis of actus reus
 A crime is the deed or commission or the result of active human conduct and the doing part
of the offence
 The commission of an act, deed or conduct which is prohibited by law and viewed as
sufficiently harmful to society constitutes a crime
 The intent to commit a crime is part of the commission of the crime seeing as thinking is a
deed; although not openly manifest.
o The intent is however subjective and the prosecution must prove that the accused
suspect had the specified intention.
o Treason falls under this category
 The prohibited acts for the offence of murder may not exactly be expressly laid out. Thus,
murder itself is the unlawful killing of another or the causing of the death of another.
o The focus is on the results and any act which results in the death of another
 Commission also covers offences where the act complained of is permitting something
prohibited to be done
o Alli s/o Mzee v R
 Bus driver permits passengers to sit on the roof of the bus
 The appellate court held that a person can be said to have permitted something
they had no knowledge of provided that it is shown that they were in a position
to forbid the act and they had a responsibility to forbid it
Omission
 The common law position is that no one is held criminally liable for the harmful consequences
of his omission to act, whether the omission is careless or intentional,
 The exception to this is where the prosecution can establish that they were under a legal duty
or obligation to take action in the circumstances
 Presence of a Legal Duty or Obligation
o When there is the presence of a legal duty or obligation, an omission may amount to an
offence
o S. 244 of the Penal Code makes it a misdemeanor for a person to omit to do an act
which it is their duty to do and thereby causing harm to another person.
o The Penal Code sometimes creates duties such as in the case of Njenga v R where the
appellant was convicted for omitting to take precautions when he lit a cigarette in a
highly flammable area after being warned not to do so
o In addition to this, certain other Acts similarly create legal obligations or duties and
consequently make it a criminal offence to fail to comply with these obligations
whether by abandoning, absenting, disobeying, failing, neglecting, not doing, omitting
or refusing.
Events or States of Affairs

 Some criminal offences come in the form of an occurrence of an event in which the accused is
involved through being in possession of something, being in a certain state and being present
at a prohibited place or event
Being in Possession of Something
 The Principle
o The crime of being in possession of something involves
 An accused being in possession of something that is prohibited (such as
possessing a prohibited drug) S. 3 Narcotic Drugs and Psychotropic Substances
Act,
 Or being in possession of it for illegal purposes
o (such as possessing forged documents) – Alley Ali v R
 Being with articles for the purpose of committing an offence – S. 308 Penal
Code
 Possessing government stores – S. 324 Penal Code & Ismail Abdulrehman v R
 Being in possession of stolen or suspected stolen property - S. 322 and 323
Penal Code & Osman v R
 Being in possession of something without a licence, permit or authority –
 Such as possessing a firearm or ammunition without a firearm certificate
– Geoffrey Kangotho v R
o Essentially, possession is made an ingredient in these and several other offences
o For example, S. 323 of the Penal Code makes it a criminal offence to have possession
of suspected stolen property and the Firearmes Act S. 4(1) makes it an offence to be in
possession of a firearm without a firearm certificate.
o However, the case of Osman v R recognized that for the accused to be found guilty, it
must be established that they must have had the property in their possession
o The case of AG v Vithaldas Lodhia similarly held that prosecution was obligated to
prove the accused had possession of the raw gold, which would’ve only made the
accused liable if he hadn’t obtained it lawfully.
o Although, the case of Muraguri s/o Muigai v R established that possession may be
found from proved facts.
 Custody and Control
o Custody and Control are the essentials of the actus reus element of possession
o In Lokempen Leborua v R, the CoA held that prosecution has to show that the accused
was in exclusive control of the stolen item to establish possession.
 In this case, it was held that the appellant was not liable for the offence of
possession of stolen property because the appellant only had mere knowledge
of the place where the stolen cattle were, which was not sufficient to constitute
possession of the cattle, also because there was no evidence that the appellant
was in exclusive control of the cattle or had joint control with the person who
had/stole the cattle
 Possession under the Penal Code
o Under S. 4 of the Penal Code, possession is defined to mean having something in one’s
possession, as well as knowingly having anything in actual possession or custody of
any person, or having anything in any place for the use of benefit of any other person.
o In addition to this, where 2 or more with the knowledge and consent of each other have
anything in their custody or possession, it is deemed that the thing is in the possession
of all of them. – Gachuru v R
o In Kamau s/o Njeroge v R the CoA upheld that the definition under the Penal Code is
wider than the common law doctrine of possession and that it applies only to the term
when that term is used under the Penal Code
 Possession under other Acts
o In Stephen v Republic, it was held that the definition of possession in the Penal Code
applies only to offences under the Penal Code
o In drug cases the definition applicable is that stated at common law as was upheld in
Kamau s/o Njeroge v R where the common law definition was used
o However, the courts have observed, as in the case of Dusara v R, that there is no
objection to the definition under the Penal Code giving guidance as to the meaning of
possession in other Acts creating offences
o In Ahmed Mohammed Ali v R the CoA defined possession for the purposes of the
Narcotic and Psychotropic Substances Control Act (NPSCA) as when a possessor has
access to and physical control over the thing that they are in a position to deal with it
as an owner could be to the exclusion strangers.
 Possession and Knowledge
o Knowledge is usually the mens rea that accompanies possession
o In Gupta v R, since an accused knew that goods he was harboring were uncustomed,
he was convicted for the offence of possessing uncustomed goods
o Similarly, in the case of Msembe v R, the courts stated that knowledge about a stolen
item in the custody of a person can be justifiably deemed to constitute possession on
the part of the person having such knowledge
o Furthermore, the fact of knowledge must be considered in the context of surrounding
circumstances
o However, knowledge alone is not enough and evidence of control of the item must
accompany the knowledge as was held in Lokempen Leborua v R
 Defences and Justification
o When one is accused for unlawful possession, their defences include arguing:-
 The possession was lawful or justified – Chege s/o Kamau v R
 The thing was planted on the accused by another
 That the thing was possessed by gifting from one who was licensed to possess
– Muusya v R
 Giving reasonable excuse
 Mwangi s/o Wambugu v R – Accused was on the way to surrender the
ammunition when he was caught
Being in a Certain State

 Examples of being in a certain state include being drunk and incapable or disorderly at a public
place and being drunk or drugged while driving, among others.
 However, the requirements under the Act must be fulfilled for the accused to be convicted.
o E.g in Kinyua v R, the accused was convicted for being in a state of intoxication
contrary to the KRCA, but on appeal it was held not to be to the annoyance of another
person as the statute outlined and so the conviction was quashed.
Being Present
 Being present at a prohibited place constitutes actus reus for some offences
 The actus reus can be constituted by being present at a place where unlawful oaths are being
administered
o S. 59 of the Penal Code makes being present during the taking of unlawful oaths to
commit capital offences an offence and a similar offence is created in S. 61 of the Penal
Code relating to unlawful oaths to commit other offences
Other Event or States of Affairs
 There are certain other offences where the principal element is an event such as
o Being adherent to enemies of the Republic – S. 40(2)(b) Penal Code
o Becoming an accessory to the commission of a crime
o Being in company or consorting with a person who is in possession of a firearm or
other dangerous weapon or ammunition – S. 89 Penal Code
o Sleeping whole on duty or at a time when one is not allowed to sleep – KDFA
Circumstances
 The circumstances under which an offence is committed, whether an act, omission or event,
also forms the actus reus of that offence
o In rape the circumstance is sexual intercourse without consent
o In defilement it is sexual intercourse with a minor
o In bigamy it is going through a ceremony of marriage while one is still married
Consequences or Results
 For some offences, the actus reus includes a particular consequence or result occasioned
o In murder and manslaughter, the result is death or unlawful killing of a human – S. 202
& 203 of the Penal Code
Causation
 The harm caused by the act, omission or event must be traceable to the offender before they
may be criminally liable for it. But for their commission or omission, the harm could not have
occured
 Where there are several causes, the position is that the event is caused by the factor without
which it could not have happened
 Causation is especially important where:-
o There is no physical involvement or participation by the accused
o The accused’s participation is indirect
o Another person has intervened
o The victim’s own conduct affected the result
o There is contributory negligence by the victim
 Liability only arises where the whole actus reus and its elements are proved
 For example, in murder it must be proved that death was caused by the accused. Therefore, if
it is proved that they intended it but did not cause it, then they would not be liable
o E.g in Abdalla Nyasi v R, the appellant was acquitted because there was no evidence
connecting the accused with the incident
 In some cases, an accused may be excused on the ground that another person intervened and
appears to be the direct and more immediate cause of the harm.
o Such intervention presents a break in the chain of causation and is called the principle
of novus actus interveniens.
o This was applied in the case of Gichunge v R, where a conviction of murder was
substituted with unlawful cause of grievous harm by the CoA, due to the fact that there
was a possibility that death was caused by an intervening circumstance and there was
no proof that death was caused by the appellant
Voluntariness
 A person cannot be criminally liable for an act, omission or conduct unless it is voluntary
10 | P a g e Lemuel Abishua
 If one lacks control over their bodily movements at a material time, they cannot be said to have
acted voluntarily and to have committed the actus reus of the offence
 An accused actions may be involuntary due to:-
o Automatism
 This is where an act is done by the muscles without any control of the mind,
such as a spasm or reflect action or a convulsion done by a person who is not
conscious of what they are doing – Bratty v A.G Northern Ireland
o Reflex Actions such as in Hill v Baxter where the accused crashed his car after a
beehive attacked him when driving
o Physical force by another
Mens Rea
 Mens Rea is the condition or state of mind required by the definition of the offence charged.
 A person is not criminally liable for his acts or omissions unless it is proved that he had a
blameworthy state of mind at the time of the act. This blameworthiness of the mind is known
as the mens rea.
 Parliament can enact laws taking away the requirement of mens rea and allowing courts to
punish acts without proof of mens rea.
 The kinds of culpability or states of mind differ. Among others, they include:-
1. Intention
2. Recklessness
3. Negligence
4. Knowledge
Intention
 Definition
o Intention denotes the state of mind of a person who foresees and wills the possible
consequences of his conduct
o It is the conscious shaping of conduct to bring about a certain event
o You did or caused it on purpose
 Foresight
o The common law position is that there cannot be intention unless there is also foresight
o In R v Augen, the court held that everyone is presumed to have intended the natural and
probable consequences of their actions
o Foresight is a crucial element of intention
 Unintended Consequences
o When unintended consequences occur, one is usually not criminally liable
o This was upheld in Uganda v Aida Kabali, when a nurse was accused for possession
of drugs, but she argued she was keeping them in safe possession because her superior
was not around. It was held that her intention was innocent and so she was not liable.
 There are two types of intention.
o Direct intent (also known as purpose intent) is the typical situation where the
consequences of a person's actions are desired.
o Oblique intent (also known as foresight intent) covers the situation where the
consequence is foreseen by the defendant as virtually certain, although it is not desired
for its own sake, and the defendant goes ahead with his actions anyway.
 How do you prove intention?
o Inference
 Intention may be inferred from the facts or the surrounding circumstances
 In the case of Cleopas Hamisi v R Mombasa, the CoA established that intention
may be inferred from the facts and/or surrounding circumstances of the
particular case
 Lex v. Ougen s/o Manya Kutama (1948)
 The accused hit the deceased twice with a heavy blunt weapon. The
court concluded that he had the intention to kill and cause grievous
harm, based on the weapon used and the part of the body hit.
Recklessness
 Recklessness is the taking of an unjustified risk.
 The difference between recklessness and intention is that in intention there is desire for the
consequences and recklessness there is no desire.
 In recklessness the accused person forsees the possible consequence but does not desire them
but nevertheless is careless as to whether they occur or not.
o E.g over speeding in a populated area is reckless

 Proof of recklessness is sufficient to establish mens rea for a criminal offence.
 Legal rule requiring proof that the accused person was aware of the risk is said to impose a
subjective test whereas one which require proof of merely that the accused person should have
been aware of the risk (a reasonable man would have been aware) is said to impose objective
test.
 Okwisia vs. Republic (1987)
o Here the high court held that driving a lorry at night without the lights was reckless.
 Ok so you didn’t want to hurt her, but you knew the odds were very high you could hurt her
and you still did
Negligence
 Negligence is the failure to achieve a standard of conduct expected of a reasonable person.
 It is an objective standard which ignores completely what is in the mind of the accused i.e. the
accused person would be held negligent whether or not he is aware of the risk of his failure to
achieve the standard.
o Test is based on the hypothetical reasonable person, and involves the defendant either
doing something the reasonable person would not do, or not doing something which
the reasonable person would do.
 The accused may not foresee the consequence of his action, in fact he may be taken by surprise.
 It does not matter that the defendant was unaware that something dangerous might happen, if
the "reasonable person" would have realized the risk, and taken steps to avoid it.
 Also, if an accused person has specialist knowledge or expertise, then he is expected to achieve
the standard of a reasonable person possessed of such knowledge and expertise.
 Ok so you didn’t mean to hurt him and did not know how high the odds were that you could
hurt him, but you should have known that you were going to hurt him”
 In Kiilu v R, the court held that a head teacher and his deputy were not negligent because they
could not have foreseen the tragic events that took place
 In the case of R v Amosi Onoka s/o Amboya it was held that the ingredients of manslaughter
by negligence include:
o A duty of care on the part of the accused
o Failure to discharge that duty

o Death caused by default on the part of the accused
o The accused’s negligence goes beyond a mere matter of compensation and shows such
a disregard for the life and safety of others as to amount to a crime against the State
and therefore deserving punishment
 Negligence and Traffic Cases
o Negligence is a prominent issue and common determinant of criminal responsibility in
traffic cases
o Criminal liability arises when the conduct of the accused goes beyond reasonableness
and is indicative or amounts to serious negligence
o The same was upheld in the case of Chander Sethi v R, when the CoA held that an
accused was criminally liable when she drove dangerously with brakes that were in bad
working condition at a high speed and caused the death of a pedestrian
 Negligence and Recklessness
o The difference between negligence and recklessness is that in recklessness, the offender
is openly careless about or indifferent to the consequences
 Contributory Negligence
o Contributory negligence is a defence in civil claims but it is not available in criminal
matters
Knowledge
 Knowledge means you can know that you are acting or causing harm without the criminal
object or purpose to cause the harm.
 In some offences knowledge is a very essential element/requirement for the crime
 Knowledge of the circumstances may be expressly required for some offences
 Gupta vs. Republic
o It was stated that knowledge is an element of the offence and that a person holding
uncustomed goods would be guilty if they have guilty knowledge that the goods are
uncustomed.
o The accused was therefore liable for harboring goods knowing that they were
uncustomed
 Ok so you didn’t do it because you wanted to hurt me, but you knew (or you were practically
certain) you were hurting me.
Knowledge and Possession
 Guilty knowledge is require for offences where possession is an element of the offence
 In Kalili v R, the court established that the accused will be criminally liable where they knew
or should have known that goods were stolen at the time of receipt
 In regard to drugs, the court held in Gathara v R that for a person to be convicted, it must be
shown that they had knowledge of what they were transporting
Knowledge and Aiding and Abetting
 Knowledge becomes the mens rea that links an aider and abettor to the commission of an
offence
 In Ali Islam v R, it was held that an aider and abettor becomes a principal offender by
participating with full knowledge in the offence
Strict Liability
 A strict liability crime is one that does not require intent to break the law. In other words, it
doesn’t matter if you meant to break the law or not, you can still be convicted of the crime.
 Offences of strict liability are those crimes which do not require mens rea with regard to at
least one or more elements of the actus reus. The defendant need not have intended or known
about that circumstance or consequence. Liability is said to be strict with regard to that element.
 It is only in extreme and rare cases where no mens rea is required for liability, thereby making
the particular offence "absolute".
 The vast majority of strict liability crimes are statutory offences.
o However, statutes do not state explicitly that a particular offence is one of strict liability
 Where mens rea is not required by the definition of the offence, it is said to be one of strict
liability and one would be convicted merely on proof of the actus reus
 This can occur even in the absence of any intention, recklessness, negligence or any fault on
the accused’s part
 The courts will be reluctant to construe a statute as imposing strict liability upon a defendant,
where there is evidence to suggest that despite his having taken all reasonable steps, he cannot
avoid the commission of an offence.
 Strict liability arise where a statute creating the offence, states that the mens rea is not required
for the offence defined in that statute (implied or expressly).
 It all depends on the definition in the statute and therefore is a matter of construction or
capitation of that provision by the court.
 Where the statute defines an offence without the requirement of mens rea then that offence is
a strict liability offence (this interpretation is for the court to make and not the prosecution)
 In the case of Muchai vs. Republic, the court held that an accused convicted of using a motor
vehicle which was not maintained in such condition that driving it will not be a danger to the
other road users. He caused an accident after the brakes had failed and hit a vehicle from
behind. In her defence she said that when she got to the car the brakes were working fine and
at the time of the accident she was not aware.
o The court held that this was a strict liability case and it didn’t matter whether she knew
about the brakes or not
General Principles
 There are several principles which govern criminal responsibility. While some relate to
substance, others are related to the process
Presumptions
 There are certain presumptions that are recognized in criminal practice.
 They arise mainly as matters of evidence, in terms of what the prosecution may be required to
prove, and what may be presumed.
 Presumption is a rule which requires that upon proof of one fact, the court may or must infer
that some other fact exists or it may presume the existence of those facts.
 This implies the existence of two sets of facts; when one set is proved, the other may be
presumed to exist by virtue of the facts proved.
 This is the law appreciating the fact that, because it is not possible to get direct evidence in all
matters hence you can only presume and thus makes it acceptable for courts to draw inference
and conclusion from already recorded facts.
 E.g the presumption of death:
o If someone has been un-heard off for the last seven years and there is evidence to show
that no one has seen or heard off him then it is acceptable to presume that he is dead.
o This presumption is made based on three set of facts:-
 He is lost
 He is unheard off for seven years
 He has not been seen by anyone in the last 7 years
 Presumptions are classified into Presumptions of Law and Presumptions of Fact
Presumption of Innocence
 The presumption of innocence underlies criminal law and has been enshrined in the
Constitution through Art. 50(2)(a) “An accused person is entitled to be presumed innocent
unless the contrary is proven”
Presumptions of Law
 The presumptions of law are classified into rebuttable and irrebuttable presumptions. A
presumption of law is a presumption of fact, which the law must presume to exist.
Irrebuttable Pressumptions
 An irrebuttable presumption of law is a presumed fact which if found to exist cannot be the
contradicted by evidence.
 It is also known as a conclusive presumption
 Section 14 (1) (3) has examples of Irrebuttable presumptions of law
o It provides that a person under the age of 8 years is not criminally responsible for any
acts or omission
 This is an irrebuttable presumption of law because once it is established that
the suspected offender is a child less than eight years old no charges ought to
be brought against him. No evidence can be led to prove that he committed the
offence
 In line with this, in the case of Mumbi vs. Republic, the accused was around 8 years of age, she
was charged with murder of an infant baby girl of about (2-3years).The high court discharged
the accused because there was insufficient evidence to show that the accused was above 8
years. The court gave her the benefit of doubt and presumed that she was below 8 years and
under section 14 (1) of the penal code released her
Rebuttable Pressumptions
 A rebuttable presumption of law is one that can be contradicted by evidence.
 A particular fact is presumed to exist but the presumption can be displaced by evidence to
the contrary.
 Section 14(2) of the Penal Code, for example, creates a rebuttable presumption of law. It states
that a child under twelve is not criminally liable, unless it can be proved that at the time of the
offence he had capacity to know that he ought not to do the act.
o Here, it is presumed that the 12 year old child is not criminally liable
 A presumption of innocence also falls under this category because the accused is innocent until
proven guilty.
o A presumption rebuttable by evidence to the contrary
Presumption of Fact
 This is a fact that the court may presume to exist on the proof of another fact.
 1t presupposes the existence of two sets of facts.
 The court may on the proof of one fact or set of facts presume that the other fact or set of facts
are equally proved
 They are usually subject of express provision by legislation or implied by case law.
Statutory Presumptions
 Sometimes, presumptions of fact are creatures of statute.
o E.g Economic Crimes Act makes a presumption where an accused has done the act. It
is presumed to have been corrupt, unless the contrary is proven
Inferences as to mens rea Elements
 The court normally infers mens rea or presumes mens rea from the proven facts or the elements
of the actus reus
 The principle of presumption of fact applies with the proof of mens rea.
 The court normally infers mens rea or presumes mens rea (that is the elements of intent,
knowledge, foresight, etc.)
 Mens rea is the mental element/intention/knowledge which is sometimes hard to prove.
 You can only presume the mens rea from the accused’s conduct
Presumption arising from recent possession of stolen property

 Where an accused party is in possession of property very recently stolen, in the absence of an
explanation by him to account for his possession, a presumption arises that he was either the
thief or a handler by way of receiving
Presumption Arising from Failure to call a Witness
 When a party fails to call a crucial witness, it is presumed that their evidence would have been
unfavorable to the party.
 This was upheld in the case of Kingi v R, where the prosecution failed to call a crucial witness
that they were aware of in a stock case; the court held that they were entitled to presume that
his evidence would have been unfavorable to the prosecution’s case.
Presumption of Corrupt Conduct
 A rebuttable presumption of corrupt conduct is created where an accused us unable to explain
assets. The same was upheld in the case of
Presumption in murder cases where the deceased was last seen with the accused
 A presumption arises in murder cases where there is evidence that the accused was the last
person seen with the deceased, that the accused knew about the circumstances of the deceased’s
death and therefore the accused is expected to explain how they parted company
 The presumption is rebuttable and can be displaced by an explanation
 In Ndunguri v R, an accused was held responsible for the death of another because they were
last to be seen with the deceased
AOB
 There is a presumption that an accomplice is unworthy of credit, unless they are corroborated
 In rape cases, lack of consent is presumed if certain factors are present. They are laid out in the
Sexual Offences Act
Burden and Standards of Proof

The Principle
 The issue of proof is a matter of evidence and procedure
 These matters are primarily dealt with in Sections 107, 108, 109 & 110 of the Evidence Act
 EVIDENCE ACT, S. 107
• This section provides that the burden is on a party who desires judgment on legal rights
or liability, which are independent from the existence of facts which he asserts to prove
the existence of those facts
 Furthermore, when a person is bound to prove the existence of a fact, the burden of proof lies
on that person (Upheld by ruling in R v. SCCMCHN & Another ex parte YPS & Another [2006])
 EVIDENCE ACT, S. 109 & 110
• Section 109 places the burden of proving the existence of any particular fact on the
person who wishes the court to believe in its existence; unless it is proved by any law
that the proof of that fact lies on any particular person
• Section 110 places the burden of proving admissibility of evidence on the person who
asserts that such evidence is necessary
 The burden is placed on the accuser and in criminal cases this is the prosecution
 Since the burden of proof lies with the prosecution, usually the State, the accused person has
no burden or onus of proof except in few exceptional cases
• The court in R v. SCCMCHN & Another ex parte YPS & Another asserted that the
burden may be shifted if provided for by the law
Burden on the State

 The State or Prosecution has the burden of proof in criminal cases
• What do you think is the reason for this?
 The burden is linked to the presumption of innocence
 The standard of proof is beyond reasonable doubt (BRD)
• Once more, what are some of your thoughts on this?
• Woolmington v. DPP
 Woolmington v. DPP
 This is a famous HoL case where the presumption of innocence was first articulated in the
Commonwealth!
 Woolmington killed his wife who left him by mistake (or not) he was then charged with murder
 The lower courts position differed from what the House of Lords upheld
 Woolmington was acquitted 3 days before his sentence
 Burden on the State
 The State has to prove that the accused committed the elements of the offence charged
• This includes the proof of mens rea, actus reus (including proof of all actus reus
elements)
 The State is to discharge its burden of proof (BoP) on any issue without doubt
 If doubt is created in the court’s mind on an issue then the State loses and the doubt is resolved
in favor of the accused
• The court is said to have failed to prove beyond reasonable doubt
 In Mwaula v R, the court stated that even where the accused refuses to participate in the
proceedings and remains silent, the State is not relieved from establishing its burden of proof
 In Mbugua Kariuki v R, the court established that the burden remains on the State throughout,
and where the defence raises an issue such as provocation, alabi, self defence (etc.) the BoP
does not shift to the accused; instead, the prosecution must negate that defence BRD.
• The accused assumes no onus in respect to the defence (Is there an exception to this?
 In Longinus Komba v Republic, the court stated that conviction should be based not on the
weakness of the defence, but on the strength of the prosecution’s case. The court further
asserted that even where an accused has lied and rendered his defence weak, the court still has
to ascertain evidence against them BRD!
 However, when an accused tells obvious and deliberate lies which are disproved and
disbelieved, there is an effect.
 In Ernest Asami alias Onyango v Republic, the Nairobi CoA stated that in such a case that the
lies are capable of providing corroboration
 Furthermore, in Oremo v R, the court upheld that the prosecution is not required to negative
each and every imaginable possibility, but only to negative such possibilities as are reasonably
raised by the defence
BURDEN ON THE ACCUSED

 The burden of proof always rests on the prosecution and never on the accused to disprove the
charge brought against him.
 In Kioko V Republic; it was held that the law does not require the accused to prove his
innocence and therefore it is not right for a court to refer to certain facts and omissions of the
accused as being inconsistent with his innocence.
 There are exceptions to this rule e.g. in the case of insanity where the accused has to prove that
at the time of the commission or omission of the offence he was insane.
 Where the burden of proof lies on the accused, the standard of proof is on a balance of
probability.
 In Mwakima & 3 others V Republic; the trial court had erroneously held that the duty to explain
the circumstances of his possession of the item in question was beyond reasonable doubt.it was
held that where the law places a burden of proof on the accused, the standard of proof is never,
unless clearly stated by law, so high as that on the prosecution to prove a charge beyond
reasonable doubt.
The burden imposed by section 111of the evidence act
 There are several cases where the law where the burden of proof of certain exculpating facts
id cast on the accused.
 Section 11 of the evidence act paces the burden of proof on the accused in certain
circumstances where the accused challenges the existence of certain circumstances bringing
the case within any exceptions or exemptions from or qualification to the operation of the law
creating the offence with which he s being charged. And the proving of any facts especially
within his knowledge.
 The burden would however be discharged if the court is satisfied by the evidence adduced to
by the prosecution as to the existence of such circumstances.
 In Mkendeshwo v Republic; it was said that generally the accused assumes no legal burden of
establishing his innocence, except for certain circumstances where the law places a burden on
the accused to explain matters that are peculiarly within his own knowledge.
 In Kibocha v Republic; the court found on the facts that the appellant was the last person to
be seen with deceased alive the before her death; consequently he had the evidential burden
under section 111 of the evidence act to explain what had happened to her.
 It is possible in some cases to have both situations , that is, exceptions and exemptions from
and the qualification to the operation of the law, on the one hand and facts within the
knowledge of the accused on the other.
Exceptions, exemptions from and qualifications to the operation of the law
 Some legal provisions call for a certain type of person ,who falls under a certain criteria and a
given set of rules, to be exempted from the operation of the law or qualify the operation of law
 If the accused can prove that the given circumstances led to her/him falling under these
exemptions or exceptions or qualifications the operation of the law, then the law will not apply
to him.
 The burden rests on the accused to prove the circumstances.
 Doto s/o Mtaki v R; even if the circumstances are established it does not amount to a defence
 Bombay Trading Stores Limited and another v R; it is upon the legislature through statute to
establish whether the burden of proof shifts to the accused if the exceptions/exemptions apply
to her/him.
 The courts found that statute (Pharmacy and Poisons Ordinance) established that there was an
exception where the burden fell on the accused to prove if they were authorised to sell part 1
poison and if the customer they sold it to was allowed.
 Regina v Lesororuwa s/o Mbario; accused was convicted of killing an animal contrary to
section 13 (b) of the National Parks Ordinance which stated it was unlawful to kill,injure, an
animal, and destroy,take ,capture or disturb an egg or nest unless with the permission of the
Trustees or an officer or servant that has authority from the Trustees to do so.
 The appeal was dismissed by the High Court. It was stated that the burden fell on the accused
to state why he had the right to kill the animal destroying the crops on his property.
 The accused/appellant must make an effort to show she/he falls under the exemption from the
beginning of the trial (Raojibhai Bhailalbhai Patel v R)
Facts especially within the knowledge of the accused
 In some cases the obligation is placed on the accused to prove facts that are especially within
her/his knowledge, usually arises in regulatory legislation.
 Mwaitige v R, the burden is not for the accused used to show no crime was committed but to
prove facts in his knowledge that the prosecution has no way to prove.
 Negative averment – statement of fact expressed in the negative (Doing something unlawful,
operation without a licence)
 once the prosecution (the State) prove the positive elements of the charge, it is the burden of
the accused to negative them through evidence.
 Hatibu bin Rashad and another v The Queen the appellants were charged with carrying maize
without a permit. The court stated that where the facts raise a suspicion of guilt the court in the
absence of an explanation will convict.
 They applied the ideology of possession of stolen property. If a person is found with property
recently stolen and cannot give a reasonable explanation or evidence then the assumption is
guilt.
 If one is accused of driving a car without a licence the state has to prove the accused was
driving and driving without a licence. The accused must prove he had one at the time.
 John Nzoli and another v R accused was convicted for carrying fare – paying passengers
without a public transport licence.
 He was found to be guilty as the onus was on him to prove he was indeed carrying carrying a
public service licence at the time of arrest which was not discharged.
 In cases where one was doing something without authority it is the burden of the state to prove
she/he was acting ultra vires and that the action required authority. The accused then incurs
the burden of proving they had the authority. (Section 96 of the penal code)
 Mohammed Hassan Ismail v Reginum the accused did not produce the license he claimed to
own for possession of a firearm even when given the chance to. The conviction in the appeal
was upheld as it was his duty to produce the licence but did not thus failed to discharge the
burden.
INSANITY
 Where the accused pleased insanity, the burden of establishing the plea rests with him
 Section 11 of the penal code states that every person is presumed to be sane until the contrary
is proved.
 Accused also incurs a similar burden when he pleads temporary insanity due to intoxication
 Godiyane s/o Rugwire – It was stated that the heavier burden lies on the prosecution, if
insanity is pleaded, to prove otherwise.
Statutory burden
 A statute may expressly place a burden upon the accused to prove a certain fact.
 It was stated in Ali Ahmed Saleh Amgara v R that section 111 of the Evidence Act does not
apply to cases where the burden of proof is placed on the accused by statute.
 Examples of Statutes:
• Section 323 of the Penal Code, which creates the offense of having or conveying
suspected stolen property, casts a burden of proof on the accused of satisfying the court
how he came by the property.
• In this case the state still has the burden to prove the elements of the offense beyond
reasonable doubt,and it is only after the state discharges that burden that the burden
shifts to the accused.
• Section 3(2) of the Trespass Act places a burden of proof on the accused, once it is
established that he had entered or was on private land, to prove that he had reasonable
excuse or the consent of the occupier to enter or be on the land.
• Section 68 of the Narcotic Drugs and Psychotropic Substances (Control) Act
places the burden of proof on the accused with respect to establishing that there existed
any license, authority or other matter of exception or defence.
• In Vithaldas Dayabhai Lodhia v Regina it was held that in cases where the accused is
charged with the unlawful possession of something, and the prosecution produces
ample evidence to prove the accused was found in such possession, the onus shifts to
the accused of proving that his possession was lawful.
• Section 8 of the Gold Trading Ordinance provided that; ' If any raw gold is found in
the possession, power or control of any person that person shall, unless he proves that
he obtained it lawfully, be guilty of an offense against this Ordinance.'
• He was found by the court to be in possession of raw gold, whereupon the court held
that the onus of proving that his possession of gold was lawful had shifted to him, but
he had failed to give an explanation of his possession to the court.
Possession Cases
 Where the doctrine of recent possession is applied, the onus is cast on the accused to give a
reasonable explanation which may be reasonably true as to how he came to be in possession
of the goods.
 In Thomas Mwanjoka v Republic it was pointed out that the shift of onus occurs only after the
court has found that possession was in fact sufficiently recent to theft and even then a
conviction should be based on the strength of the prosecution case and not on the weakness of
the defence.
 In Mbatha v Republic it was held that an accused person is not required to prove himself
innocent, but if he is in a situation where he is found with items which were recently stolen, he
would be the only person in a position to explain his possession of the items.
 The onus of proof on the accused also arises in all other cases of possession.
 In Gupta v Republic it was said to apply in the case of possession of uncustomed goods contrary
to Section 185 (d)(iii) of the Customs and Excise Act, where it was held that once the
prosecution has proved guilty knowledge on the part of the accused of possession of
uncustomed goods, the onus shifts to the defence to give an explanation to show absence of
guilty knowledge.
 If the defence gives a convincing explanation t becomes the duty of the prosecution to adduce
the evidence to demolish such explanation to re-establish guilty knowledge beyond reasonable
doubt.
 In Kariuki Kamau and others v Reginam it was held that where a possession of a firearm is
proved against the accused person, the onus is upon him to prove lawful authority or exercise
for such possession.
 In Remtullah Panju v Rex it was held that for the offense of being in unlawful possession of
something, the burden of proof is on the accused to show that he came into possession of the
thing lawfully, and not upon the prosecution to show that the accused was knowingly in
unlawful possession.
Corruption cases
 The ACCUSED bears the burden of proving that the advantage was not accepted corruptly.
 The accused MUST prove on a balance of probabilities that he/she did NOT accept the
advantage corruptly as an inducement or reward- Haining V Republic [1970] ED 620.
Murder cases
 In murderer cases, where the accused was. He last person seen with the diseased, the accused
incurs the burden of explaining the circumstances she or he parted with the diseased. If he/she
doesn't do so, the presumption is that they knew the circumstances in which the deceased died.
• In Ndunguri V Republic, evidence sowed that the appellant was the last person to be
seen with the deceased and the deceased body was retrieved in the appellant's house.
The court held that the onus to explain how he and the deceased parted was on him as
that knowledge was peculiarly within his knowledge.
 This was a matter of circumstantial evidence.
Persuasive and Evidential Burden

 A persuasive burden is that of persuading the court and an evidential burden is to adduce( cite
as evidence) evidence to persuade the court.
 Where burden of proof rests on a party , then they incur the persuasive burden to convince the
court , and to discharge that burden they incur a burden to lead evidence in support of their
case.
 Jacinta Njoki v Republic – Court of Appeal indicated that the burden of proof in all cases
remains on the state, to establish their case beyond reasonable doubt and the burden never
shifts to the accused, however there is the evidential burden that shifts depending on
circumstances. This Burden is recognized under the section 111 of the Evidence Act.
 A persuasive burden is that of persuading the court and an evidential burden is to adduce( cite
as evidence) evidence to persuade the court.
 Where burden of proof rests on a party , then they incur the persuasive burden to convince the
court , and to discharge that burden they incur a burden to lead evidence in support of their
case.
 Jacinta Njoki v Republic – Court of Appeal indicated that the burden of proof in all cases
remains on the state, to establish their case beyond reasonable doubt and the burden never
shifts to the accused, however there is the evidential burden that shifts depending on
circumstances. This Burden is recognized under the section 111 of the Evidence Act.
 In a criminal trial process there are two stages in the proceedings, the prosecutions case and
the defense case.
 The prosecution has the persuasive and evidential burden during the presentation of their case
to adduce evidence to prove a prima facie case of the accused's guilt.
Ignorance of the Law

 Ignorance or mistake of law is not a defence.
 Mens rea does not mean that the accused must have been aware of the illegality of his conduct.
 Ignorance of the law is a defence only where knowledge of the law is expressly stated to be an
element of the offence.
 This principle is stated in section 7 of the Penal Code, where it is stated that ignorance of the
law does not afford any excuse for any act or omission which would otherwise constitute an
offence unless knowledge of the law by the offender is expressly declared to be an element of
the offence.
 R vs Bailey (1800) R &R 1
o Where a sailor was convicted of contravening a statute of which he could not possibly
have known since it was enacted when he was away at sea, and the offence was
committed before the news of the enactment could reach him.
 This rule is justified on several grounds.
 One, it is presumed that everyone knows the law.
o This is on the proposition that since most crimes are also moral wrongs, it is to be
expected that the person affected has some rough idea of the law. Drivers, for example,
are generally expected to know what is required of them legally, even if they may not
know the specific content of the law.
o Secondly, it is difficult to prove that the accused knew the law.
o Thirdly, it is a rule of expediency.
DEFENCES
Insanity
Introduction
 Defences in criminal law afford the suspect an escape from criminal responsibility, on the basis
that his behavior was excusable or justified, and for that reason either the mens rea or actus
reus required were absent.
 The burden of proof lies on the prosecution. The accused does not have to discharge the burden
of proving his defence.
 However, the accused has to discharge evidential burden of giving evidence which will give
life to the defence and prosecution has to disprove the defence raised by the given evidence.
 The only exception with respect to the defence of insanity is that an accused Person who raises
that defence has the burden/onus of proving it , and he is expected to produce adequate
evidence to establish that he was insane at the time of committing the crime
 It was stated in Kiyengo v Uganda that the burden of proof in a criminal trial remains on the
prosecution throughout and, except in special cases shifts to the defence.
 It was observed that the accused person is under no burden to raise a defence, with the
exceptionof the defence of insanity.
The principle
 The policy which underpins this defence is that it is wrong to punish those whose actions are
attributable to illness rather than responsible choices on their part.
 The defence is stated in Section 12 of the Penal Code.
 The law, at section 11 of the Penal Code, creates the rebuttable presumption that every person
is sane. The presumption of sanity is rebuttable by the accused proving that he was not sane
within the time of commission of the alleged crime.
 In Tadeo Oyee s/o Duru v R, it was stated that where the defence of insanity is set up, the
criminal responsibility of the accused, whether insane or not, has first to be determined under
Section 11 and Section 12 of the Penal Code.
 According to Section 12, the defence of insanity is available if the accused person is able to
prove that at the time of the commission of the offence he was suffering from a disease of the
mind and he was incapable of understanding what he was doing, or incapable of knowing what
he was doing was wrong.
 It was pointed out in Joyce Mugure Andrew Kathari v Republic Mombasa that the defence
of insanity as section 12 is restricted to the time of doing the act and does not extend to the
time the accused person is charged and cautioned nor does it cover the admissibility and
inadmissibility of his confession.
 The burden of proving the insanity is on the accused and the standard of proof required of the
accused is on a balance of probability.
 Godiyane Barongo s/o Rugwire vs Rex – It was stated that the burden of proof rests with the
accused, however it is not as heavy as the burden on the prosecution who need to prove
otherwise.
Time to Raise the Issue of Insanity

 The matter of the accused's insanity may be raised during the prosecutions case ,by the defense
confronting prosecution witness with matters touching on the state of mind of the accused at
the time of the commission of the offence. It may be raised by the defense or the prosecution
or even by the court itself.
 Jesse Wagai Mbugua vs Republic Nairobi – The issue of the appellants insanity was not
raised at any stage of the trial, and was raised for the first time on appeal, the Appellate court
held that it was too late in the day to raise the defense.
 The responsibility of the Prosecution and Accused with respect to the defense of insanity
o The accused should lead evidence during the defense case on his state of mind in
support of his plea of insanity
 Mwangi vs Republic – prosecution may call rebuttal evidence where the defence leads
evidence on insanity
 Republic vs Saidi Kabila Kiunga -- where the defense of insanity is raised the evidence of
the accused must be considered judicially and given due weight .
 The burden of proof remains through out on the prosecution to establish their case against the
accused, and to disapprove the defense of insanity
 Philip Muswi s/o Musele vs Reginam – The court held as a general rule that evidence of he
state of mind of the accused should be called by the defense. It stated that it is improper for the
state to call doctors to testify as to the accused's state of mind. Since the burden of proof lies
with the defense, it should call such evidence. The exception of the rule is where the accused
is not represented, evidence as to his state of mind should be called by the prosecution.
 The Courts Responsibility.
o Rex vs Kibiro s/o Karioki – It was stated that medical evidence is not essential to
prove insanity as it is for the court and not for medical men to determine the issue of
insanity.
Insanity as Subject of Inference
 Insanity at the time of the commission of the offence is usually inferred from the facts presented
to the court. The defense would lead evidence on previous records of madness or insanity of
the accused, or medical evidence based on observation of the accused after his arrest.
M’NAGHTEN RULES
 It is in this case that the definition of insanity is found
 It was not formulated during the hearing but after at the request of the House of Lords. They
questioned the aquital of the defendant on murder.
 However, due to its incorporation into the Penal code, there is no need to refer to the M’naghten
case (George Mungai V Republic )
A) Defect of Reason
 The defendant/suspect during get the time of the act/ommission must have been suffering from a
disease of the mind
 The disease must be approved or in existence according to psychiatry eg schizophrenia, depression,
PTSD
 The disease must be able to lead to disorientated thinking ie sociopathy whereby one is incapable
of acting in a socially acceptable manner whereby they either don’t realize the effect of their
conduct on others or are are ware but don’t care.
 Section 12 covers diseases of the mind and not personality disorders ie OCD thus psychopathy is
controversial as it is a personality disorder.
 A disease of the mind may also be caused by another bodily malfunction. Some diseases affect the
mind causing deterioration of one’s mental ability ie Intoxication
 In the case of Tadeo very Oyee s/o Duru v Republic it was held that the cause of the disease of
the mind is immaterial whether mental or physical
B) Incapacities
 There are two types;
1. Incapacity to understand what one is doing
2. Incapacity to know what one is doing is wrong
The accused must prove that the medically approved disease led to any of the above otherwise
insanity cannot be used as a defense.
1) Incapacity to understand what one is doing
The mental disorder may affect ones capability to understand the implications of their conduct.
The distortions can be extreme where one is thinking they are doing something but are actually
doing something else ie PTSD patients, where they are doing something without knowledge
of their actions.
Richard Kaitany Chemagong v Republic
Though epileptic patients are normal majority of the time, during epileptic attacks they act in a
violent manner that allows them at that time to be considered legally insane.
R v Magata s/o Kachehakana –
Son killed his father because he believed he was Satan, it was held that he did know what he
was doing during the act.
2) INCAPACITY TO KNOW THAT WHAT ONE IS DOING IS WRONG.
 This is whether the person at the time of the commission or omission of the act was incapable
of knowing what he was doing.
 In Rex V Kamau, it was stated that the accused may know the name of the physical act but be
unable to know that what he was doing was wrong.
 The standard he given to test his knowledge of the act was that of the reasonable man. i.e
whether he knew that according to the ordinary standard adopted by a reasonable man , he
knew that the act was right or wrong or that the act was wrong by law.
 In Musele V Reginam, the accused murdered his wife allegeding that he did not know what he
was doing. There was evidence that the accused was depressed and he felt justified in killing
his wife under the belief that she was performing witch craft on him. The appeal was dismissed
because he was able to give a clear and detailed account of what happened and it suggested
knowledge of his actions.
Insane delusions
 The other limb of the M’naghten rules is insane delusions. In the penal code, it is not
specifically dealt with but treated as part of criminal law in Kenya.
 An insane delusion is a belief that cannot be eradicated from the persons mind through
reasoning.
 The rule on insane delusions is that the accused who is suffering from insane delusions must
be treated as if he is in the same position of responsibility as if his delusions were real.
 The same was reflected in the case of Rex V Gerevazi s/o Lutabingwa.
 In Rex V kabande s/o Kihigwe; the appellant had been convicted for murder . Her defence was
that she was under the delusion that the deceased had killed her children. The court found that
the defence did not make out because all her children were alive and she also knew what she
was doing was wrong because she fled the scene and threw away the murder weapon .
INSANITY AT TRIAL
 As one may imagine, insanity is a procedural bar at trial
 This occurs where for instance the accused is of unsound mind at the time of the trial and as a
result is unable to understand and participate in the proceedings.
 A significant factor revolving around this issue is the fact that the accused may even be unable
to make their defence at trial
 In such an instance, the law provides that the accused is not to be tried (Section 162 Criminal
Procedure Code, CPC)
o The court, under this law, is obligated to make an enquiry as to the accused’s ability,
and upon finding that they are incapable, order the adjournment of the proceedings and
ensure that the accused is medically treated
 The court in Mwangi Muraya v R established precedent which provided that there is no
requirement that the accused prove insanity to the standard of proof expected under Sections
12 & 13 of the Criminal Procedure Code (CPC)
o Rather that they provide some reason for the court to believe or suspect that the accused
is of unsound mind
 CPC, Section 163
o Section 163 of the CPC provides the procedure where a person of unsound mind has
subsequently been found capable of making a defence.
o It provides that the medical officer in-charge of the facility should issue a certificate to
that effect to the office of the Attorney General (Now the Director of Public Prosecution
due to the 2010 Constitutional Regime)
o Consequently, the Director of Public Prosecution in turn informs the court whether or
not they should continue with the prosecution
o Following this, the court calls the accused for further directions
 In the case of Rex v Olual s/o Kongo, the court established the procedure to follow when it is
alleged that an accused, who had previously proved to have been “insane” is allegedly
recovered and no longer “insane“
 It was established that the court has discretion to decide whether or not the accused is in fact
insane despite any medical reports, which are only material for determination purposes
Intoxication
 Intoxication is caused by either alcohol or drugs: although most criminal offences in which
intoxication play a part involve alcohol.
 Alcohol basically removes inhibitions, exposing the person to aggression, violence and the
resultant breaches of law.
 The essence of the defense is that the defendant was so intoxicated that he or she was incapable
of forming the mens rea of the offence that he or she is charged with.
 The defendant must show that the alcohol, drugs or a combination of the two made him or her
incapable of forming the mens rea of the relevant offence.
 Section 13 of the Penal Code.
• As a general rule, intoxication is not a general defense – it does not constitute a defense
to any criminal charge.
 REX V KINGORI S/O KIBIRO
• It was held that what section of 13 of the Penal Code lays down is not that a person
being intoxicated is evidence that he is incapable of forming an intention…
 But that if the court is satisfied that by reason of intoxication a person is in fact incapable of
forming an intention then he will be excused not by reason of such intoxication but by reason
of the absence of intention.
 The principles on this defense as set out in the penal Code are derived from those stated by
Lord Birkenhead in DPP v Beard (1920) where it was said that drunkenness is not a general
defense.
 Evidence that the accused person had consumed a lot of alcohol to the extent that his mind was
affected by it, making him prone to violent passions affords him no defense.
 Intoxication according to the court can only be pleaded as a defense if it is a case of involuntary
intoxication, intoxication amounting to insanity, or intoxication negating mens rea.
 If, despite his or her intoxicated state, the defendant was still able to form the necessary mens
rea, the defense will not apply.
 KIYENGO V UGANDA (2005)
• In considering the defense of intoxication, the question is not whether the accused
person was or was not capable of forming the intention, but rather whether by reason
of the drink taken, he did not form the intention.
 GABOYE S/O PARMAT V REX (1946)
• The appellant killed the deceased after he, the appellant, saw his step brother’s blooded
head after he was hit by the deceased, and the appellant was informed that it was the
deceased who was responsible for the injury.
• One of the issues raised on appeal against the conviction for murder was that the
appellant was drunk at the time of the killing of the deceased.
• The court found that there was evidence that the appellant had consumed quite a lot of
beer and was not completely sober at the time.
• But there was also evidence that he was not so drunk as not to know what he was doing
or to form a specific intent to do at least a grievous harm to the deceased.
• He was not so drunk as to be able to interrogate his brother and find out the name of
his assailant, he was able to take in this information, to walk or run armed with a
suitable weapon to the hunt of the deceased.
• In the opinion of the court, these were not the acts of a person whose mind had been
bemused by drink as not to know what he was doing or to form a specific intent.
DUTCH COURAGE
 The defense is not available where a person deliberately gets drunk in order to get the courage,
commonly called Dutch courage, to carry out a criminal purpose.
 STEPHEN MAINA MACHARIA V REPUBLIC
• The court was convinced that the appellant got drunk merely as a way of arming himself
with Dutch courage to commit the killing. Although he pleaded drunkenness, the court
was of view that his acts prior to the killing pointed to a premeditated killing.
• The appellant had earlier that day, when he was not drunk, given instructions for the
sharpening of the panga used in the killing and for its fitting with a handle.
• The appellate court was of the opinion that the appellant was lucky to get away with a
conviction for manslaughter following his own plea of manslaughter.
THE INCAPACITIES
 For intoxication to be a defense, it has to cause the incapacities stated in Section 12 (2) OF The
Penal Code.
 It should make the accused incapable of understanding what he was doing or incapable of
knowing that what he was doing was wrong.
 In addition to that, the intoxication must have been involuntarily caused by another person or
the person charged must have become permanently or temporarily insane by reason of the
intoxication.
Involuntary Intoxication
 A person who consumes alcohol involuntarily or against his will may successfully plead the
defense of intoxication.
 Such a person would be saying that he became intoxicated against his will and therefore he
had no control over what occurred as a result of his intoxication, and that whatever happened
was not his fault.
INTOXICATION AMOUNTING TO INSANITY

 The defense of intoxication amounting to insanity as set out in section 13 (2) of the Penal code
mirrors the defense of insanity as set out in Section 12.
 In short the defense of intoxication amounting to insanity is really a plea or defense of insanity.
 REX V D H RETIEF (1941)
• It was held that insanity, whether caused by excess consumption of alcohol or
otherwise, is a defense to the crime charged.
INTOXICATION NEGATIVING MENS REA

 Section 13 (4) of the Penal Code states the defense of intoxication negativing mens rea, by
providing that intoxication is to be taken into account in determining whether the person
charged had formed an intention for the offence charged, and in the absence of any such
intention he would not be guilty.
 Whether intoxication induces incapacity in the suspect to form the requisite mens rea for the
offence charged is usually a question that the court infers from the facts presented by both the
prosecution and the defense.
 BUZOYA & ANOTHER V REPUBLIC
• Appellants had consumed a considerable quantity of alcohol when one of them fatally
struck the deceased.
• One appellant had grabbed a woman and attempted to sexually assault her, whereupon
the deceased came to answer her cries and was hit on the head with a pounding.
• It was the conduct of the appellants that the court considered in determining that they
were too drunk to form intent to kill.
• One, they were in an extreme state of intoxication.
• Two, after the fatal assault, instead of fleeing they remained at the scene of the crime
raising the alarm.
• Three, they stayed all night by the body of the deceased, which the court noted was
unusual conduct by persons who are aware of their guilt.
• The conviction of murder was quashed; appellant who struck the blow was convicted
of manslaughter, while his colleague was set free.
 Total lack of purpose or motive may also be a ground for a court to infer intoxication negativing
mens rea.
 REX V NYODE S/O WOPERA
• Accused was convicted of murder. He was drunk when he suddenly drew a knife from
his waistband , and without a word and without getting up, stabbed to death a boy sitting
near.
• On appeal, he pleaded that he was so intoxicated that he did not know what he was
doing and was technically insane, or alternatively that he was so intoxicated that he was
unable to form an intention to kill or do grievous harm.
• It was held that while intoxication was to be taken into account in deciding whether the
accused had formed a murderous intention, it was not the only factor to be considered.
 Other factors to be considered such as, the absence of any quarrel or other motive for the crime,
the aimless way the stabbing was done, the lack of any provocation etc
INTOXICATION & PROVOCATION

 There is often a coincidence of intoxication and provocation, where the accused pleads
provocation under the influence of alcohol.
 Philibert v Republic
• It was held that an accused person who puts forward such a plea must be prepared to
be judged by the standard of an ordinary person in the community to which they belong.
 BURDEN OF PROOF
• INTOXICATION NEGATIVING MENS REA
• There is no burden on the part of the accused to establish that by reason of his
intoxication he was incapable of forming a specific intention required to prove
the offence charged.
• NYAKITE S/O OYUGI V R
• For this defense, there is no burden of proof on the accused.
• Where the lack of mens rea is raised by the defense, the onus of proving mens
rea beyond reasonable doubt rests with the prosecution.
• INTOXICATION CAUSING TEMPORARY INSANITY
• Where accused raises this defense, he incurs the burden of showing the insanity.
(Cheminingw’a v Reginam) (1956)
• DRUNKEN BRAWL/CHANCE MEDLEY
• Sironga ole Gidi and others v Reginum (1948)
• The doctrine of chance medley has no application in Kenya, and the
matters falling under the doctrine are covered by the law on defense of
person or property.
Provocation
THE PRINCIPLE.
 It is defined as any wrongful act or insult of such a nature as to be likely, when done or offered
to any ordinary person, or to deprive a person of self-control and induce him to commit an
assault of the kind which the person charged committed upon the person the act or insult is
done or offered.
 Provocation can be used as a partial defense to murder, if it is accepted, it means conviction of
manslaughter instead of murder.
 Although it is not an absolute defense, its effect is to reduce the offence of murder to
manslaughter and other offences.
 It is considered as part of the extenuating or mitigating circumstances that are taken into
account in determining the appropriate sentence to the crime.
 In the Toili v Republic case, they explained the rational behind the defense, when it is said that
once a person is provoked and starts acting under anger, he will do so until he cools down and
starts seeing reason, while acting under provocation he would be suffering under diminished
responsibility.
 It was held in Rex V Mushimbi, that the question of provocation in East Africa is a matter of
specific legislation and not the common law, and that the English law of provocation is
different from that applying in east Africa.
 A similar position in Rex V Hussein, where it was said that in considering what may be grave
and sudden provocation , the court should be guided by the local law, as opposed to the English
law.
INGREDIENTS OF PROVOCATION
 Section 207 and 208 of penal code are used to deal with killing on provocation.
 The courts must take all the circumstances in account to determine if there was sufficient
provocation
 The elements of provocation include;
1. There must be an act of provocation.
2. There must be loss of self-control on the part of the accused.
3. The retaliation made by the accused should be reasonable to the provocation.
4. HEAT OF PASSION
o According to the case Yovan v Republic heat of Passion is referred to both a state
of anger and any emotionalstate caused by provocation.
5. PROVOCATION MUST BE SUDDEN
o The suddenness of it provokes the suspect to act at the heat of the moment without the
opportunity to cool off.
o The mere existence of an intention to kill does not deprive an accused person the
defence of provocation although it must be inspired by sudden provocation.
o Even where flagrante delicto is not found it may be proven in law that there is
sufficient provocation sufficient enough to reduce an international killing to
manslaughter.
6. PROVOCATIVE ACT MUST BE IN THE PRESENCE OF ACCUSED OR CLOSE
RELATIVE.
 Related to the issue of sudden provocation, it is required that the provocation must be done in
the presence of the accused, to the accused or towards a person who the accused
 Although, in most recent cases it had been determined that provocation need not be done in
the presence of the accused like in Rex v Okurutunu s/o Ongiro
 It was held that in order to establish provocation in law, it is not essential that the acts
constituting the provocation should have been done in the presence of the accused person.
o Rex v Musomi s/o Rutengerastands in a special relationship.
SPECIAL RELATIONSHIP
 A special relationship does not include a fellow tribesman. Legal provocation is not available.
Rex v Welwel bin Kamara and others
EVIDENCE OF PROVOCATION
 It must consist of a wrongful act.
 In the case of Rex v Jehoshaphat Rugambi Mwaniki(1942), it was stated that for a wrongful
act to constitute legal provocation it need not be more than a tortuous act, as such is sufficient
to constitute legal provocation, if the person struck honestly and reasonably believes that he is
the victim of a wrongful act and in that belief kills the person who strikes him.
 Trespass to property is considered provocation if the trespass can at the same time be
considered as a wrongful act or insult done or offered by the deceased to the accused.
 This was established in the case of
o Jongo s/o Kego v R
o Rex v Muruma s/o Nyaboba
o In Rex v Zakayo Itima s/o Birigenda,the court was convinced of the defense of
provocation founded on verbal insult of a gross nature on the accused.
Loss of self-control
 Provocation must be such as would deprive an ordinary person of class to which the accused
belongs of his power of self-control.
 It must be judged by the standard of an ordinary person of the community to which the accused
belongs.
 This was established in Jorum v Republic
 A person who is unusually excitable or pugnacious is not entitled to rely on provocation which
would not have led an ordinary person to act as he did.(Rex v Maziku s/o Nunguyashi.
 The age of an offender is a relevant and unusual characteristic consideration when a plea of
provocation is made.
 It has been held that a reasonable person is not confined to an adult person, it includes minors
who have attained the age of criminal responsibility.
 RC v Republic
• Here, a thirteen year old child killed a seven year old child. The defense of provocation
was not available because by virtue of section 14(1) of the Penal Code, a seven year
old was incapable of lawfully forming an intention to say or do an act which any other
person could latch on to escape liability for a criminal act.
 The retaliation or response to a provocation.
• Retaliation must bear a reasonable relationship to the provocation.
• In Nyanya s/o Kweyu v Reginam it was held that defence would be available where a
person who is provoked by the acts of another, mistakenly or accidentally kills a third
person while in the process of retaliating against the person who provoked them.
• Another factor is the weapon used in the retaliation and the manner it was used.
• Rex v Frank Mwale ,it was stated that it is a principle where a deadly weapon
is used the provocation must be so great indeed to reduce the offence of murder
to manslaughter.
WITCHCRAFT AND PROVOCATION.

 Witchcraft is a major issue in Africa, it is often raised as a defence element to charges of
murder.
 A mere belief in witchcraft does not constitute a circumstance or excuse or mitigation for
killing a person believed to be a witch.
 A threat to kill by witchcraft does not found a basis for raising the defence of provocation.
 However a threat to kill taken with other existing circumstances could lead to legal
provocation.
 Rules:
1. The act causing death must have been done in the heart of passion.
2. Where the deceased was performing some act which in the eyes of the accused or any
ordinary member of the community would genuinely believe it was an act of witchcraft.
3. There must be an immediate provocation.

4. The provocation must amount to an offence under criminal law.
 A threat to cause injury to health or even death in the near future cannot be considered as
physical provocation.
 Rex v Fabiano Kinene
• The accused persons were convicted for the murder of person they belied to be a witch
doctor who was responsible for the death of several of their relatives.
• They found him crawling NAKED AT NIGHT in their compound then they killed him.
• Their conviction was on appeal reduced to manslaughter because the act of crawling
naked at night in their compound to be a Legal provocation.
 In the case of Republic v Lucas P Timba, it was held that in determining whether an act was
sufficient to provoke the accused, the court should consider all the surrounding circumstances.
REFUSAL FOR SEXUAL INTERCOURSE.

 Refusal for sexual intercourse does not afford a basis for the doctrine of legal provocation.
 However, if it is found out that refusal for sex, combined with other circumstances constitute
an element resulting in a situation which might amount to provocation.
 In the case of Rex v Paulo Lwevola the court ruled that refusal of sexual intercourse was not
sufficient to provoke the killing of another.
INSULTS OR HARSH WORDS

 As a general rule insults or harsh words do not provide sufficient defence.
• Rex v Maziku s/o Nunguyashi.
 Verbal abuse is insufficient provocation.
 Vulgar words or insults are sufficient if they are of a manner which is likely to deprive a normal
person of sufficient self-control.
 Obar s/o Nyarongo v Reginem
• The deceased had made a remark that contained insulting inuendo to the accused who
proceeded to stab him.
• Upon appeal the accused’s sentence was reduced from murder to manslaughter.
 Rex v Oba s/o Uru (see also)
 Rex v Paulo Mugweru s/o Erukana
o The accused had an argument with the deceased, a woman had been living with.
o In the course of the argument the deceased said she’d leave him as she’d found
another lover who was a better man.
o The accused proceeded to attack her with a panga and kill her.
o He appealed that the court should have considered his defence of provocation.
o It was held that:
 The words the deceased used didn’t amount to an insult as stipulated in the
penal code(Division IV–offences against the Person)
 The deceased was not the legal wife of the accused so the news that she had
found a new lover could not in itself constitute provocation.
o His appeal was denied.
 Rex v Rino Ocaya s/o Opere
o Accused was annoyed with his wife as she hadn't prepared food for him and their
children. When he asked her to prepare food she abused him and later struck his
heel with a stick.
o He was infuriated and used the stick to hit her to death. He was convicted of murder
and proceeded to appeal.
o The abuses coupled by being struck on the heel deprived the accused of self-control.
o His appeal was successful.
 Rex v Kagari s/o Kambari
o Intimation a wife is about to leave her husband unaccompanied by some wrongful
act or insult of a gross nature cannot be said to amount to grave and sudden
provocation.
 Haule v Republic
o The appellant had been quarrelling with his wife after which he picked up a piece
of wood and struck her to death.
o His appeal was successful.
 Quarrelling and abuse constitute provocation, unless killing is effected by a deadly
weapon.
 Rex v Toya s/o Mamure
WRONGFUL ACTS TO PROPERTY

 Yusufu alias Hema s/o Lesso v Regina
• Intruders tresspased on the accused’s land and he proceeded to pursue on of them and
kill him.
• The question of provocation does not arise in cases of wrongful acts done to property.
• Appeal denied.
 Rex v Murume
• The defence of provocation for wrongful acts to property was bad law.
• Mugo v Republic(recent exception)
CUMULATIVE PROVOCATION
 Its used to describe cases involving prolonged maltreatment of a person in the hands of another
that leads to the killing of the abuser by his/her victim.
 Cheboi v republic [2002]
• A clerk, Cheboi, was married to the deceased in 1976 with five children, but their
marriage was troubled; characterized by the deceased constant declaration of love and
association with another man.
• On the material day the accused was aggravated when she began her love declaration
for another upon his questioning. He removed a knife from his bag and killed her.
• Held the history of disagreements amounted to cumulative provocation and the events
of the material day were the last straw, his conviction was substituted for manslaughter.
 Joseph kimanzi munywoki v republic
• A man killed his wife for having an open relationship despite continuous warnings from
him. The last straw was the discovery of incriminating photos of the two, followed by
an enquiry from the wife who was rude and arrogant about it.
• Held; the man had been wronged and humiliated over a long period of time, and only
acted when he saw the photographs and received derogatory answers from his wife.
• His conviction to murder was quashed and substituted with manslaughter
 Republic v johali ismail
• Accused finds Muslim cap in wife's underwear upon enquiry she refuses to answer, and
husband takes cap to her father. An argument between the two occurs and the wife
threatens the husband with a panga and he leaves. On his way home the next day he
sees the two together and takes them before the elders where they deny the accusation.
• The accused then said he was provoked by the act of the deceased denying before the
elders the fact that he found him with his wife.
• The court stated that the accused had sufficient time to cool off as he had to walk for a
kilometer to the elders thus no last straw.
BURDEN OF PROOF
 The accused does not bear the onus of proving provocation, but it’s the states onus to proof the
accused had not acted upon provocation.
 This facts need only be proved by reasonable probability and not strictly.
 The reasonableness of retaliation should be tested with regard to the ordinary members of
community where they belong.
 However where the accused denies any knowledge of the offence then provocation cannot be
raised as a defense
Defence of Person or Property

The principle
 The defence of self-defence is governed by section 17 and 241 of the penal code.
 The penal code does not define the right to the defence; instead, section 17 of the penal code,
which provides that the criminal responsibility for the use of force in the defence of a person
or property is to be determined in accordance with the principles of the English Common Law.
 The right to the defence of property or the person is limited by section 241 of the penal code,
which provides that the person asserting the defence of defence will be held criminally
responsible for any excess of the excess.
 In the case of Republic v Gachanja [2001] it was said by Etyang J that self-defence is in law
an absolute defence to a criminal charge. It absolves an accused person from criminal liability
for, where self-defence is available to an accused person, he is deemed to have acted within
the permitted force.
 In Msiwa and another v Republic [1999], it was held that for a homicide to be justifiable, the
accused must show that they were acting reasonable self-defence.
 There are three Types of Defences. Under common Law there is;-
1) Defence of person
 Self-defence
2) Defence of another person
3) Defence of property
 The Ingredients of Defence
 There is a distinction between felonious and non-felonious attacks under Common Law.
 In Mungai v Republic it was stated that the use of excessive force in the defence of a person
will frequently result in a conviction of manslaughter rather than murder.
 But under Common Law there is the rule that an accused person who goes beyond what is
reasonable in defence of the person should be convicted over manslaughter rather than murder.
Felonious Attack
 A felonious attack was defined in Selemani s/o Ussi v Republic, as one where the attacker seeks
to kill or cause grievous harm on the victim or to commit robbery.
 Where a felonious attack is made on a person, he would have the legal right to stand his ground
and resist and if he kills the protagonist, the homicide would be justifiable provided that
the measure of resistance are reasonable in the circumstances.
Non-felonious
 If the assault is not felonious, then the victim of the assault must if safely possible retreat and
must not use force against the attacker
 Can only use force if he is placed in such a position that he cannot otherwise evade the attack.
 The law expects a person to flee until he is driven to the wall.
 In Yozefu s/o Adiriyano Eduku v Reginam (1954) the deceased came to a beer party and began
to abuse the accused, who, to avoid trouble, left the party. The deceased followed and attacked
him, by slapping and kicking him.
 The accused being smaller than the deceased, found that he could not defend himself well
again, he drew a knife from his pocket, while the deceased pressed his attack.
 The accused struck him twice with the knife and the deceased died shortly thereafter. The
accused was convicted of murder, which was on appeal reduced to manslaughter on the
grounds of self-defence.
 Musyoka and others v Republic [2003], it was held that the accused person finds that he is in
evident danger from his opponent, he must retreat from the danger, and if an accused person
finds that he cannot retreat further, then he can use force to defend himself.
Defence of self
 With respect to self defence the rule is that a person may use all such reasonable measures to
defend himself having regard to the nature of assault.
 In Uganda v Mbumbuli, it was stated the law relating to self defence as consisting of 4 major
elements;
o There must be an attack on the accused.
o That the accused must as a result of the attack have believed on reasonable grounds
that his was in imminent danger of the death or serious bodily harm.
o That the accused must have believed that it was necessary to use force to repel the
attack made upon him.
o The force used by the accused must be such force as the accused believed on reasonable
ground to have been necessary to prevent or resist the attack.
 Also the court must have regard to the following factors;
o Whether or not the parties were drinking at that time
o Whether the attack was upon a sudden quarrel
o Whether the attack was completely provoked.
o Whether the accused fought back, raised an alarm, or whether he used force
immediately.
o The nature of force used by the accused to repel the attack should be proportional to
the attack
 The Court stated the legal position that a person attacked in such circumstances that he
reasonably believes that his life was in great danger.
 He is entitled to use force, even deadly force to prevent the attack.
Defence of Another Person

 The rule is that a person is entitled to use all reasonable force to prevent the commission of a
violent felony on another person.
 In Ilapala s/o Ibrahim v Reginam, it was held that the killing of another is justifiable when the
accused acts without vindictive feeling and reasonable believe that a person’s life is in
imminent danger and that his action is absolutely danger is that of a person related to the
accused or of a stranger.
 In Mungai v Republic, the point was made that a person who has been attacked and by virtue
of s392 of the penal code must act to prevent the commission of a felony which was occurring
in his presence .
DEFENCE OF PROPERTY
 A person may use all such means and force as are reasonable taking into account all the
circumstances.
 In Muthiga v Republic, it was stated that ones right of ownership and possession of some
property against a trespasser amounts to a defence of such property.
 In relation to a trespasser, the owner may remove him from land using no more force than is
reasonably necessary.
 The test of lawfulness is that of reasonableness.
 In Marwa s/o Robi v Republic, it was stated that reasonable force may be used to resist any
person who attempts to seize property.
 Similar force may be used to recover stolen goods from a thief. However the use of that force
though justifiable is subject to the rule that the defendant will be criminally liable for any use
of excessive force.
 He may be convicted of murder or manslaughter if he killed a robber or a burglar.
DEFENCE AND PROVOCATION

 Self-defence and provocation are both defenses available to the accused.
 In Hau s/o Akonaay v Reginam, the court in reducing a conviction of murder to manslaughter,
found that the accused had acted both in self-defence and under the stress of provocation.
 The accused had quarreled with the deceased and immediately a fight ensued between them.
The accused had a stick while the deceased had a stick and spear. It was the accused who struck
the first blow. There was no time for passions to cool.
BURDEN OF PROOF
 The burden of proving the defence of defence does not rest with the accused.
 In Oloo s/o Gai v R, it was stated that where the evidence discloses an element of self-defence,
the onus of proof remains throughout upon the prosecution to establish that the accused is
guilty of murder, and the burden is never on the accused to establish self-defence.
 It was held that the prosecution must show that the time before the fatal blow was struck for
the person charged to have realized that he was out of danger, and he desisted from attacking
his assailant.
Bona fide Claim of Right

 This is the sincere and genuine belief held by the accused that they are entitled to the property
stolen. This is a defense in any case where larceny is an element. Larceny being the theft of
personal property. The defense extends to someone who takes property on behalf of another
with the belief that they have a bona fide claim of right to the property
 An accused person must raise evidence to raise the defense of claim of right. If the accused
discharges the evidentiary onus, then the prosecutor is to negate the defense of claim of right
beyond reasonable doubt.
 R V Renee Julie Fuge
 Renee Julie Fuge and her friends were convicted of an armed robbery of one Hungry
Jack's restaurant. Ms. Fuge had been an employee at the restaurant but was sacked for
tardiness.
 She appealed her conviction and attempted to raise a Claim of Right defense on the
basis that she believed she was owed back-pay and so was entitled to the money taken.
In which case she and her friends did not act dishonestly and should not have been
convicted.
 This appeal failed spectacularly as the Court of Criminal Appeal found that the defense was
not raised at trial and there was no evidential basis for it. However, the judgment became the
leading case on the Claim of Right defense and provides a review of the authorities.
Principles for defense of claim of right.

 The claim of right must be one that involves a belief as to the rights of the property in the hand
of another.
 The claim must be genuinely held.
 Belief must be one of legal entitlement and not moral entitlement.
 The claim of right is not confined to a specific property or banknotes but can also extend to
cases where what was taken was an equivalent value.
 The claim of right must extend to the entirety of the property taken and not just a part of it.
Accident
 Governed by S.9(1) of the P.C.
 A person is not criminally responsible for an event which occurs by accident. Unless charged
with an offence which expressly declares liability by negligence.
 Example in homicide cases.
 In Rex V Gusambizi Wesonga. It was started that homicide unless accidental is always
unlawful
 The logic is that a person, accused,did not foresee that his conduct would have the
consequences prohibited in the definition of the offence.
 It differs from mistake of fact in that in an accident the accused does not foresee the
consequences of his action. While in mistake of fact he mistakes the circumstances which
surround his conduct.
 Example
 A person firing a gun at a target in a rifle range. If he shouts too high and the bullet
injuries a person who is beyond the range would not be liable, for he could foresee the
consequences of his firing the rifle. It would be a mistake of fact for a person to pull
the trigger of a loaded gun in the belief that it is not loaded. However, the accused will
not be excused criminal responsibility since the accident was caused by negligence.
 David Odido Ojowo v R. the accused was beating his wife with a club, when one of the blows
fell on his six-month-old daughter and killed her. He was convicted on his on plea of guilty of
manslaughter. He appealed.
 On appeal on the defence of accident.as the fatal blow was aimed at his wife and not
aimed at the child.
 It was held that the fact that the blow that caused the death was not aimed at the child
was immaterial as it was all the same an unlawful act intended at a person with the
knowledge that it would cause grievous harm to that person . the crime that he
committed was probably the effect that he intended.
 R v Jehosphaphat Rugambi Mwaniki [1942]
 Held that where the defence of accident is put forward by the accused and is rejected
by the court, the court still has the duty to consider the probability of manslaughter,
even though the accused does not put forward the defence, and if there is some evidence
to suppose it.
Diminished responsibility.
 Diminished responsibility is a legal doctrine that absolves an accused person of part of the
liability for his criminal act, if he suffers from a mental ailment sufficient to impair his
responsibility in committing or being party to a violation.
 This doctrine is a mitigating defense in cases where the mental defect is not sufficient to
completely exclude criminal liability.
 Most frequently connected to murder cases that require proof of a particular mental state on
the part of the accused.
 If the Judge (or Jury) concludes that the accused was incapable of premeditation, appreciates
the wrongfulness of his conduct or conforms his behavior to the requirement of the Law, the
court may issue a less severe sentence.
 Generally, a defendant who successfully establishes his mental abnormality is found guilty of
man slaughter instead of Murder.
 Ahluwalia, R v. [1993] CA
 The defendant, subjected to 10 years of spousal violence and degradation, threw petrol
in her husband’s bedroom and set it alight, causing his death.
 Held:
 No evidence was adduced at trial that the defendant suffered from a post
dramatic stress disorder or ‘battered woman syndrome’.
 Note:
 On appeal, the court admitted evidence, quashing the murder condition on the basis of
the defendants depressive condition. At re-trial, her plea of manslaughter by defense of
diminished responsibility was accepted.
 BYRNE, R v. (1960) CA
 In this case, the defendant strangled and mutilated a young woman and fully confessed
to both.
 The defendant raised the defense of diminished responsibility. Since childhood, the
defendant had struggled with perverted sexual desires that caused irresistible impulses.
His acts were driven by such impulses on the day in question.
 Held:
 Diminished responsibility covers all the activities of the mind. Abnormality of
the mind does not have to be connected with madness.
 Lord Parker:
1) 1. To satisfy the requirements of this defense under the Homicide Act 1957 s 2,
D must demonstrate that he suffered from an 'abnormality of the mind' arising
from a condition of arrested or retarded development of mind or any inherent
causes, or was induced by disease or injury; and that the said abnormality
substantially impaired his mental responsibility for his acts in doing or being a
party to a killing.
2) 2. An abnormality of the mind is to be defined widely: 'a state of mind so
different from that of ordinary human beings that the reasonable man
would term it abnormal' and covering all cognitive aspects, from
perception to rationality and 'willpower'
Compulsion
Principle
 Found in section 16 of the penal code.
 It is designed to deal with situations in which the accuse persons has been compelled by another
or others to commit the offence with which he is charged.
Conditions to be satistisfied:
 The offence is commited by two or more offenders.
 The compulsion consists of threats to kill or cause grievious harm to the person compelled if
he refuses.
 Threats are applied throughout the period of the commission of the offence
 Salum v Republic.
 Held:
 For defence of compulsion to be accepted, an accused person has to prove that

the whole time during the act of killing was bieng done, he was compelled to
do that under the pain of instant death or grievious bodily harm if he refused to
kill.
 Mere threats of future injury, a fear to displease, will not amount to compulsion.
 M’NDUYO M’KANYORO V R
 Held:
 Threats need not to be articulate; they can be inferred from conduct and surrounding
circumstances.
 The defence wouldn’t be available with respect to threats to do physical harm which don’t
amount to grievious bodily harm, threats to kill, or physically ijure another person, threats to
injure property and threats of future injury.
 Republic v Mathai and 3 others
 defense wasn’t available to third appelant. Altough she played a negligible role, she
was present at the recording of the interview that formed basis of offending article. She
took some notes of the intervie and the article appeared in her name without her dissent.
Marital coercion
 Section 19 of the penal code comes as a defense for married women who are compelled by
their husbands to commit any crime, other than murder or treason.
 It arose from common law presumption that other than murder or treason any other felony
committed by a wife in the presence of her husband was committed under coercion.
 Current legal position
 A married woman is not free of criminal responsibility merely by virtue of her having
committed the offence in the presence of her husband.
 However, she can raise the defence under sec 19 of the penal code, also called martial
coercion if she committed the offence in the presence of her husband and under the
coercion from him.
Compulsion in administration of oaths.

 Provided under section 62 and 63 of the penal code.
 If existence of compulsion is proved, the maximum time for imprisonment is ten years.
 It is reported to the authorities within 5 days.
Compulsion as a mitigating factor

 In the case of Republic v Raphael it was established carrying a greater number of passengers
than allowed by relevant law.
 Court took judicial notice of fact that bus conductors are often put in an impossible situation.
 They have to comply with the request of their passengers and break law, or refuse the pleas an
a bad name to the detriment of their business.
Reasonable precautions and due diligence.

 This defence is raised by a person who alleges that he took reasonable precaution in due
diligence to avoid the commission of the offence
 This defence is provided in section 47(1) of the weights and measures act
 In Daudi Ogada v Republic the appellant set fire to grass on his own land which was adjacent
to complainant’s cassava field. Strong winds caused the fire to spread fast to the complainants
field and later destroyed the plants. Appellant was helped by people to extinguish the spreading
fire but their efforts bore no fruit.
 It was held that the fact that the appellant made efforts to extinguish the fire indicated that he
had no intention of destroying the crops. He had taken reasonable precaution and some due
diligence.
Acts Independent of the Will

 The Penal Code provides for the defense in section 9 (1) , where it is stated that , subject to the
provision of the Penal Code on negligent acts or omissions , a person is not criminally liable
for an act or omission which occurs independently of the exercise of his will. Thus meaning ,
he/she had no intention of harming the person , something or someone forced him to do it. This
provision refers to automatism and involuntariness.
 It introduces in the Penal Code the general principle of law of no liability without fault.
 One cannot be held liable in cases where he was not in control of the movement of his muscles,
as in the case of automatism or convulsion.
COLOUR OF RIGHT
 Differentiating between colour of right and claim of right. Without colour of right is used in
section 294 of the penal code, which criminalizes the unlawful use of motor vehicles, animals,
among others, without colour of right. This contrasts with section 268(1) of the penal code,
which defines the offence of theft as committed where a person fraudulently and without claim
of right takes anything capable of being stolen.
 According Rudd J in Joseph ogola v The Queen[ 1956] 29 Klr 174, said that the two terms do
not have the same meaning. According to the court, claim of right is an honest belief a person
has the right to or have something, and the same is a defence even if the belief is based entirely
on a mistake. Colour of right on the other hand means a honest belief, not to a right. but to a
state of facts(which turn out to be a mistake) which if it existed, would be a legal justification
or excuse.
 On the facts, the appellant had been living with a mistress, who left him while he was away on
the official duty, taking with her some of the appellant's property. She had previously been in
possession of a bicycle and the appellant believed that she had a share in it.
 The bicycle actually belonged to her brother, who lent it to another man. The appellant seized
it from that other man intending to keep it until the woman was traced in the hope that he would
recover his property which she had taken. He hoped her brother would make an effort to trace
her.
 He reported to the police instead and the appellant was charged with theft, but the trial court
formed the opinion that theft was not established and convicted him of taking the bicycle
unlawfully and without color of right. The conviction was upheld. The appellant had no right
to use or even have the bicycle as the woman was not married to him, If she had been married
to him, he would have had a color of right.
NECESSITY
The principle
 necessity is a probable defence where the accused is confronted with a choice of evils and he
reasonably believes that his act or omission would avert a greater harm. It is founded on the
principles that unlawful acts which are performed with the intention of avoiding a greater harm
are to be considered justified therefore not illegal.
 For example a person who destroys property in order to save a life, or a driver who breaks
a speed limit in order to get a dangerous ill person to hospital. it would appear that necessity
doesn't provide a defence where a innocent person was killed to prevent harm to himself.
Necessity is often seen as the basis for the defences of compulsion and self defence.
Necessity as a defence is not provided in the penal code
 The closest the penal code comes to providing for the defence of necessity is section 240
of the penal code .The provision deals with the situation where a person performs a surgical
operation on another for that other benefit, or upon an unborn child for the benefit of the
mother, there will be no criminal consequence
 In R v bourne a surgeon performed a operation of abortion on a girl of under fourteen who
was pregnant after a rape of soldier. He was acquitted. The was a case of necessity. The
surgeon was faced with a choice of taking the life of the unborn child or mother. The
prosecution failed
 The famous case of THE QUEEN V DUDLEY AND STEPHENS. The court made the point
that necessity doesn’t justify murder
 Necessity as a mitigating factor
 Necessity can be a mitigating factor. it was considered in REPUBLIC V RAPHAEL S/O
MADEJE
CONSENT
 Consent is a defense in those cases where the definition of the offence makes the makes
the absence of the consent an element of the actus reus, that where the law make it an
offense to do a particular act without consent.
 This would apply to cases where the offence is committed when the suspect does an act
without consent. In rape, for example, the offence is committed when the suspect
causes his genital organs to penetrate the genital organs of another Without that
others consent.
 The suspect can raise the defence that he had such consent, and it is up to the prosecution
to prove beyond reasonable doubt that indeed the suspect acted without consent.
 In Upar v Uganda [1971] EA 98 it was HELD that lack of consent remains an essential
element of the offence of rape, meaning that the accused ought to be convicted of rape
where the defence of consent is unavailable to him
 Achoki v republic [2000] 2 EA 283 was stated that it is the lack of consent which make
the act of sexual intercourse unlawful.
 Consent is also a defence in cases of criminal trespass, where the accused would be
pleading that he entered the property of the complainant with the consent of the
complainant
 Consent is also a defence in cases of criminal trespass, where the accused would be
pleading that he entered the property of the complainant with the consent of the
complainant
MISTAKE OF FACT
 Provided for in section 10 of the Penal Code.
 ‘ It is a defence for an accused person to show that he acted or omitted to act under an
honest and reasonable, but ,mistaken belief, in the existence of any state of things, unless,
assuming the accused’s belief to be true, his act or omission would still not have been
criminal.’
 A mistake of fact is a mistake about a state of affairs.
 A mistaken belief must be honest and reasonable and must be a mistaken belief of fact,
not law.
 Musa and others V Republic [1970] EA ( Sir Charles Newbold P, Duffus VP and Law
JA) – The appellants killed suspected thieves, and argued that they had acted under the
mistaken belief that the killings were lawful and the belief had been induced in their minds
by a speech made by their Member of Parliament.
 It was found that that the mistaken belief could not be regarded as reasonable nor was it a
mistake of fact
 MISTAKE OF FACT AND PROVOCATION
 If the accused has information conveyed to him and at the time or immediately afterwards
sees a state of affairs which gives him reasonable ground of believing in the truth of what
he has been told he may be held to have acted while suffering from grave and sudden
provocation.
 Rex v Musomi s/o Rutengera (1935) 2 EACA 91 ( Sir Joseph Sheridan P, Webb J and
Gamble AgJ) – The appellant killed a woman he believed had poisoned his child. There
was evidence that another child of the appellant had died immediately after taking the
medicine given by the deceased.
 It was held that the appellant had been provoked by an honest and genuine though mistaken
belief that the deceased had poisoned his child.
 MISTAKE OF FACT AND THE DEFENCE OF DEFENCE
 Plea to self defence.
 REX V JEHOSHAPHAT RUGAMBI MWANIKI (1942) 9 EACA 40 – The deceased
who was holding a panga used it in a negligent manner such that the accused honestly and
reasonably believed that the deceased was about to attack him with it, whereupon he, the
accused, struck him to death.
 An appeal based on the point was dismissed, with the court pointing out that a belief in
witchcraft was a not a reasonable mistake of law.
MISTAKE OF FACT AND WITCHCRAFT

 Rex V Kajuna s/o Mbake (1945) 12 EACA- The accused deliberately killed his father
under the honest belief that the father was at the moment killing the accused’s son by
supernatural means.
MISTAKE OF FACT AND MISTAKE OF LAW

 Generally not a defence, except for matters falling within the scope of claim of right.
 Did the law expect you to act in that manner?
 Leosoni alias Leonsion s/o Matheo v R [1961] EA 364 – Appellant caught hold of the
deceased’s hand whereupon the deceased struck the appellant on the face, and in retaliation
the appellant struck him to death.
 He raised the defence of provocation induced by a mistake of fact.
 It was said his was not a mistake of fact, but a mistake of law.
 The mistake of the appellant had been as to the justification for the deceased’s blow.
AOB
Alibi
 The alibi defence is raised when a suspect states that he was not at the scene of the crime at the
time the crime was alleged to have been committed
 In Karanja v R the court asserted that it means “at another place” and that the defence should
have some evidence to support it
Innocent Intention and Absence of Mens Rea

 This is where a person pleads that what they did was done innocently and with a pure intention
 In Uganda v Aida Kabali the defence was upheld where a nurse innocently kept drugs in her
custody when her superior was not available. The court acquitted her after finding that her
intention was innocent and not criminal.
Reasonable Precautions and Due Diligence

 This occurs when a person alleges that they took all reasonable precautions and exercised all
due diligence to avoid the commission of the offence
 It was upheld in Daudi Ogada v R, where an accused had done all he could to avoid the
commission of the offence and took all precautions and diligence necessary. He was not held
liable
Parties to Offence
 A crime may be committed by one person acting in complete isolation, or it may be by more
than one person.
 Where there are several persons involved, they may play different roles or their involvement
may take various forms.
 There are degrees of participation in the commission of offences.
 This means that participants in the commission are divided into a number of classes.
 They are classified as principal or minor offenders, accessories before the fact, accessories
after the fact, aiders, abettors, inciters, counsellors, procurers, among others.
 The general term used to refer to all the participants in the commission of an individual crime
is accomplices.
Principal Offenders
 The law on principal offenders is section 20 of the Penal Code.
 Principal offenders are the primary participants in the commission of the offence.
 They include the person who actually does the prohibited act or makes the omission which
constitutes the offence, the person who does anything or omits to do any act with a view to
enable or assist another person commit the offence, the person who aids or abets another in
committing the offence, and the person who counsels or procures any other person to commit
the offence.
 Whoever plays any of these roles is a principal offender, who ought to be charged jointly with
the persons who actually carry out the prohibited deed.
 They may be charged with the substantive offence as principal offenders.
 They are all liable to the same punishment.
 However, it was stated in Wanja Kanyoro Kamau v. Republic that a passive attitude while a
crime is being committed will not ordinarily make a person a principal offender
 The Penal Code treats all the principal offenders equally. It does not distinguish between
principals in the first or second or third degree as is the case elsewhere.
 In Liningushu v. Republic
o The second appellant was the widow of the deceased, she did not actually kill the
deceased, but she was the mastermind of the crime and she is the one who procured
the actual killers. The third appellant was her daughter, who facilitated the killing.
Both were held to have been principal offenders and convic ted as such of murder.
Their appeals were dismissed.
 A person who supplies property with the knowledge that it will be used in a particular offence
is a principal offender.
 In the English case of R vs. Bainbridge (1960) QB 129, (1959) All ER 200, The accused
supplied thieves with oxygen cutting equipment for breaking into a bank. He was convicted as
a principal. It was argued that he knew that the equipment was going to be used for some kind
of breaking, even if he did not know the particular breaking.
 In Sita d/o Zatio and two others vs. R, The deceased was killed by a person called a ‘lion -
man,’ who was brought up to kill. The keeper of the ‘lion man was convicted as principal
offender to murder by supplying the lion man in exchange of money, while knowing that the
‘lion man’ was to be used to kill somebody, although he did not know the particular person.
 The court held similarly in Rex vs. Munduli s/o Chui and others, that where it was said that
there is evidence that a keeper of a ‘lion man released such him for money received and handed
him over to another person with the knowledge that the hirer intended the ‘lion man’ should
proceed to certain place and there kill a person, such keeper is a principal o ffender to the
crime of murder.
JOINT OFFENDERS & COMMON INTENTION

The Principle
 Common intention and joint offenders is dealt with in section 21 of the Penal Code, The
provision envisages two or more people forming a common intention to commit a crime
together, and the offence is actually committed, whether by one or more of them.
 The Penal Code in its definition of joint offenders envisions two people having a common
purpose and intention
 In such circumstances the law treats all those involved as joint offenders, and each one of them
is deemed to have committed the offence.
 It a question of the offenders being brought together by a common unlawful intention or
purpose.
 In Buzoya and another vs. Republic It was held that the appellants were incapable of forming
a common intention on account of drunkenness. Their conduct was inconsistent, driven by
extreme mental con fusion due to intoxication.
 In R v. Mughuria s/o Bwaya 10 EACA 105 It was said that the common intention to’ use
violence may be inferred from the fact that the gang is armed with lethal or dangerous
weapons, even if only one of them is so armed.
 In Rex is. Shiundu s/o Mbakaya and another 172 (Sir Joseph Sheridan CT and Lucie- Smith
J) Two boys were convicted of causing malicious damage to property. The evidence showed
that the first accused had caused damage to a passing motor car by throwing a stone at it. The
second accused was present with the first accused and had in his hand a stone which he
intended to throw at the car and would have thrown it had not the first accused thrown first
and hit the car. It was held that the second accused was so associated with the act of the first
accused in throwing the stone at the motor car as to render him criminally responsible under
the doctrine of common intention.
 In Rex vs. Oman s/o Kindamba and another It was held that where two persons set out armed
with lethal weapons with the common intention of stealing and one of them in order to fulfil
their purpose kills the custodian of the goods or things sought to be stolen, all are liable to be
convicted of murder. In the case the two accused went to the scene of the crime with the
intention of stealing from a shop, and a watchman to the premises was kill ed in the process of
the theft.
 The offence committed in that matter amounts to robbery with violence under the current,
which is defined section 296(2) of the Penal Code.
 In Msengi s/o Mkumbo and another vs. Reginam the court pointed out that the existence of
a common intention to steal does not per se make all the members of the gang responsible for
death caused by one of them in the course of the execution of their common intention to steal.
There must be a common intention to offer violence in pursuit of the common intention to steal.
On the facts, the court found that the accused persons had a common intent to commit the
felony of theft, both were armed with sticks ready to-offer violence in pursuit of their common
intention and death resulted from that pursuit, which meant that the accused were guilt y of
murder.
Premeditated or Spontaneous
 The common intention may be formed at the very outset or beginning, that is there may be a
premeditated joint plan.
 Alternatively, it may arise spontaneously on the spur of the moment.
 In Wanjiro d/o Wamerio and another vs. R the former Court for Eastern Africa said that
common intention generally implies a premeditated plan, although the common intention can
also develop in the course of events even if it was not present at the beginning.In this case two
boys strayed into a Mau Mau camp in the bush. They were surrounded and killed by members
of the gang. The female members of the group, however, did not participate in the killing,
which they did not even witness. The females challenged their conviction of murder on appeal.
o It was held that for the relevant provision on common intention to apply it must be
shown that the accused person shared with the actual perpetrators of the offence not
only a general unlawful purpose, but the specific unlawful purpose which led to the
commission of the offence charged.
Proof of Common Intention

 Common intention may be inferred from the circumstances.
 In Lamambutu s/o Makalya and another vs. R the court declined to infer common intention
purely on the basis that the appellants all carried sticks and spears. It was observed that it was
customary for Africans to carry sticks and spears and an inference drawn from that was very
weak, although each case depended on the particular circumstances.
 In Rex vs. Tabulayenka s/o Kirya and three others the court found that where a mob sets upon
a suspected thief and beat him to death, every person forming the mob would be deemed to
have formed a common intention with the rest to kill the thief, and would be liable for murder.
It was stated that it is not necessary that there should have been any concerted agreement
between the arrested persons prior to the attack on the so-called thief.
 In Rex vs. Otieno s/o Okech (1947) The common intent of the appellants to kill the policeman
was inferred from the association of the appellants, their discussion and the act of one of them
immediately after the discussion in firing a shot at each policeman. The shooting of the
policeman was said to be necessary for the common purpose of the appellants which was to
get safely away with their loot.
Passive Presence not Sufficient

 In R vs. Kingoriwa Gakuha 13 EACA 81 It was pointed out by the court that mere presence
at the time of the commission of the offence does not make a person party to the crime without
his having participated in some way.
 Rex vs. Duloo d/o Gidakungu and others the court asserted that being a member of a gang
engaged in an unlawful activity or purpose, may make a, person responsible for the
consequences, unless he disassociates himself from the common purpose.
 The law expects that the persons be held jointly liable where what follows from the commission
of the unlawful act is a probable consequence of that act.
 In Abubakar Musa Yakubu vs. Republic Mombasa, The second appellant was a neighbour
of the first appellant. He answered alarm raised by the first appellant after the latter caught a
thief in the act and apprehended him. The thief was set upon by a mob and beaten to death.
There was no evidence connecting the second appellant with the beating, although he was
present at the scene. He was convicted on the strength section 20 of the Penal Code. On appeal,
the Court of Appeal acquitted him. It was held that mere presence at the scene of the killing of
the deceased does not make section 20 of the Penal Code applicable.
 The failure to try to prevent the conrnission of the offence or to apprehend the offenders will
also not make a person a principal o ffender in the commission of the offence.
Withdrawal from Common Purpose

 It is possible for one party to withdraw from the common purpose.
 In such cases the issue is whether that excuses the accomplice from criminal liability.
 It would appear, from the authority in R s Whitefield (l984) 79 Cr App Rep 36 That a mere
change of mind which is not supported by evidence of any action on the part of the accused,
will not suffice to relieve him of responsibility. The accused must take some step to indicate
that he no longer adheres to the common intention — usually something to stop further
commission of the offence.
 In Wachira and others vs. The Republic three people raided a store at day time with intent to
steal money. One was armed with a pistol and ammunition. As they entered the store the person
with the pistol told those inside to lie down, and the deceased resisted, with the result that
several people within the shop were shot. The gang then decided to leave without stealing
anything. They were charged with attempted robbery and convicted. One of the accused stated,
in a statement to the police, that when his accomplice drew the pistol and fired, he did not wait
to see the result, but that he ran back to the getaway car. On appeal the court was not convinced
that the accused who ran to the getaway car had abandoned the common purpose. In the
opinion of the court, he could not be said to have dissociated himself from the crime as he did
not attempt to stop his colleague from using the pistol and the mere escape to the car did not
amount to an abandonment of the joint enterprise.
Acquittal of one of The Offenders

 Where two persons are jointly charged with an offence in the course of a common design and
one of them is acquitted, according to the court in Kioko vs. Republic (1983)
 The same charge cannot be maintained against the other accused person. In such case a nolle
prosequi should be entered in the case to facilitate the filing of fresh charges based on fresh
information.
 In Njani vs. Republic (1970) PA 260 (Platt J) It was held that where two persons are charged
jointly with one offence, judgment cannot stand against both of them on a finding that an
offence had been committed by each independently. The appel1ants had been jointly charged
with and convicted of housebreaking and stealing. There was evidence that the house was
broken into and mattresses stolen. One appellant admitted stealing the mattresses, while the
other denied breaking into the house and stealing mattresses from the house, but admitted
stealing the mattresses when he found them elsewhere. It was held that one appellant was
guilty of housebreaking and stealing, while the other appellant was guilty of the ft by finding,
and that the evidence disclosed different offences which meant that no joint offence was proved
and the appellants could not be convicted jointly.
AIDERS & ABETTERS

 Aiders and abetters give assistance to the perpetrators, before or at the commission of the
offence.
 They may help with the planning or by giving material support for its execution.
 This is dealt with in section 20(1) (c) of the Penal Code.
 The distinction between the two terms is not clear.
 It would appear that ito aid’ refers t o the giving of help, support or encouragement; while to
abet’ is to incite, instigate or encourage.
 The behaviour targeted is any act of assistance in the commission of a crime, whether in terms
of provision of material aid or by encouragement of a general nature, makes a person an
accomplice to the crime.
 In Msembe and another vs. Republic, it was held that when an offence is committed, every
person who does or omits to do any act for the purpose of enabling or aiding another to commit
the offence is deemed to have taken part in committing the offence and to be guilty of the
offence and may be charged with actually committing it.
 In Rex vs. Kimonirr & 5 others the accused were found to have all taken an active part in
deciding on the death of the deceased by suicide and seeing that it was carried out under the
immediate impulse of his relatives. They were convicted of the offence of abetment of suicide.
Positive Assistance
 Mere presence at the scene of a crime does not make one an accomplice to the crime.
 What matters is whether the person present plays any role at all in the crime.
 This was the issue that confronted the court in Jacinta Njoki Ndirangu vs. Republic Nairobi
where the appellant had been convicted of murder as an aider or abettor. The appellate court
quashed the conviction on the ground that there was no evidence to show that the appellant
either assisted or encouraged in the commission of the offence. The evidence on record, and
the appellant’s own admission, placed her at the scene of the crime at the material time,
however there was no evidence that she did participate in any way in the commission of the
crime.
 If the accused is present as a look -out he would be an accomplice, but if he just happens by
chance to be at the scene then he would be innocent.
 In Mahendra Maganlal Pandya vs. Regina (1957) TLR 151 (Mahon J) The appellant was a
lookout, who waited outside as the others two hoodlums went inside. The court treated him as
an aider and abettor, who was properly convicted as a principal together with the other two
who actually went in and did the actual stealing.
Duty and Omission

 Generally there is no duty placed on a person who per chance happen to be at the scene of a
crime to do anything to stop it.
 There are however incidences where the law imposes a duty to act, and non-action may amount
to aiding and abetting the commission of an offence.
 For example, a husband who is present when his wife is drowning their children and does
nothing will be guilty of aiding and abetting the homicide.
 In cases of this nature liability will depend on the level of control that the accused has over the
actions of the perpetrator
 In the Scottish case of Bonar or vs McLeod (1983) A senior police officer who did nothing
while one of his juniors assaulted a detained person was convicted as an accomplice for
abetting and aiding the offender. He was said to have had a duty to intervene.
 A person is said to aid and abet an offence if he provides positive help in its commission.
 For liability to attach the accused must have had knowledge of the general nature of the crime
which the other parties intend to commit.
 In Ali Islam vs. Republic (1967) EA 246 (Biron J)
o The appellant was an employee of a person who was carrying on the business of selling
radio receivers. He was convicted of the offence of carrying on that business as a dealer
without the relevant licence. On appeal it was held that as an employee he could not
be held to be a dealer, nor be said to be carrying on business; but he could be convicted
as a principal on account of aiding and abetting the commission of the offence by his
employer. The recorded evidence showed that the appellant hid radios when he saw
licensing officers approaching, suggesting that he knew that there was no licence in
respect of the broadcast receivers and that it was an offence to s ell such receivers
without a licence. He participated in the commission of the offence with the full
knowledge that it was an offence.
 This principle was applied in the case of DPP (Northern Ireland) vs Maxwell where the
accused was a member of an illegal organization well known for involvement in violent
activities. He drove fellow members to a bar where a bomb was placed. He resisted a charge
of aiding and abetting the crime, saying that he did not know that a bomb was involved. His
argument was dismissed by the court, which held that all what was needed to prove aiding and
abetting was that the accused had knowledge of the general nature of the crime that the other
members intended to commit.
 Rex vs Katemi and another EALR 79 (Barth J) Treated police witnesses who procure
commission of an offence by means of a police trap as abetters of the offence committed. The
court explained that the problem with this is the danger of an innocent person being induced
to commit an offence which he would not have committed but for the instigation received at
the hands of the police. In the opinion of the court, the trap often creates the offence. The
accused had travelled to Kitui apparently to ouy goats, but the local police suspect ed them of
being slave dealers who were looking for slaves to buy. The police conceived an idea to trap
by sending a messenger to them to say he had slaves for sale. They produced two women, and
the appellants allegedly offered to buy one of them, whereupon they were arrested, charged
and convicted. On revision the conviction was quashed, since the commission of the offence
was procured by the police and their agents.
 For an aider or abettor to be convicted as a principal it is necessary that an offence should
have been committed, since they become parties to a crime by assisting another in the
commission of it.
 In Rex vs. All bin Thani 5 I (Sir Joseph Sheridan and Lucie-Smith J)It was held that a person
cannot be convicted of aiding; abetting or being concerned in the commission of an offence by
reason of an act which takes place afler the offence has been committed.
Counsellors, Procurers, Instigators & Inciters

 This is dealt with in section 22 of the Penal Code.
 To counsel is to offer advice or encouragement in the commission of an offence.
 A counsellor usually offers advice on the best way of committing a crime.
 To procure is to secure the commission of an offence by obtaining a person for the purpose of
committing the offence. It is also known as solicitation.
 A person who counsels or procures another to commit an offence is a principal offender if that
offence is actually committed.
 He may be charged either with committing the substantial offence or with counselling or
procuring its commission, and upon conviction he would be liable to the same penalties as if
had committed the substantial offence.
 When a person counsels another to commit an offence, and an offence is actually committed
by the person counseled, it is immaterial that whether the offence committed is the same as
that counseled or a different one, provided that the facts constituting the offence actually
committed are a probable consequence of carrying out the counsel.
 In such case the counsellor is deemed to have counseled the other person to commit the offence
actually counseled.
 The former Court of Appeal for Eastern Africa has held in Rex vs. Biguli s/o Lwemera and
another That to counsel and procure a person to commit the offence of arson is not necessarily
to be guilty of murder if death results. In the opinion of the court it could not be reasonably
held that loss of human life is a probable consequence of arson per se, as everything will
depend on the circumstances of the commission of the offence. The first accused had been
convicted of murder by burning down a house with his victim inside. The second accused was
convicted as an accessory before the fact by counselling and pro curing the first accused to
commit the crime. On appeal the conviction of the first accused was upheld, while that of the
second accused was quashed. The evidence showed that the second accused procured and
counselled the first accused to destroy the house of the victim; he did not counsel her killing.
 In R vs. Masabo s/o Mwendabantu l3 EACA 172. A woman was convicted of a charge of
counselling and procuring the murder of her husband. There was evidence that she was in love
with the man who actually killed her husband, that she lived at the material time with the man,
and that she had mentioned that she was looking for some medicine to kill her husband. The
trial court inferred from the evidence that the wife was actively concerned in the murder and
must have counseled and procured her lover to kill him. On appeal it was held that it could not
be established from the inferences that she had beyond reasonable doubt aided, abetted,
counseled or procured her husband’s death, and that this was really a case of mere suspicion.
 It would appear that inciting another person to commit an offence falls under counselling, and
is therefore governed by section 22 of the Penal Code.
Instigators and Inciters

 Inciting is also referred to as instigating.
 In Ondimu s/o Ondimu and another vs. Rex (1952) The second accused was jointly convicted
of murder with another. The case against the second accused was that he had verbally
instigated the first accused to stab the deceased by saying ‘Do not whip him, stab him’ upon
which the first accused stabbed the deceased. On appeal the convictions were upheld. It was
held that the verbal instigation was within section 22 of the Penal Code and the second accused
had been properly convicted as a principal offender.
 In Abubakar Musa Yakubu vs. Republic Mornbasa CACRA No. 85 of 2000 (Gicheru, Omolo
and Lakha JJA) The first appellant caught a thief in the act, apprehended him and raised the
alarm. A mob formed and beat the thief to death. The first appellant was charged and convicted
of the murder of the thief on the grounds that he had incited the mob. On appeal, it was held
that raising an alarm does not make one liable for the ultimate acts of a mob. It was further
held that it is not incitement to kill if upon apprehending a thief one shouted ‘Thief’
ACCESSORIES BEFORE &AFTER THE FACT

 An accessory after the fact is a person who assists the principal offender to evade justice.
 He could do this by sheltering the offender, enabling him to escape, or by destroying
incriminating material.
 The law on accessories after the fact is section 396 of the Penal Code, which defines an
accessory after the fact to be a person who receives or assists another, who is to his knowledge,
guilty of an offence, to enable him to escape punishment.
Accessory After the Fact

 In Rex vs. Okuoyo s/o Ocharo and another KLR 25 (Sir Jacob Barth CJ) The court declined
to find that the one of the accused was an accessory after the fact. He had assisted the other
accused driven stolen cattle, but there was no e violence that he received or assisted him i n
order to escape punishment. In the opinion of the court there was no evidence that he was an
accessory after the fact, for the basis of the offence is that the person charged assisted the
principal offender escape justice.
 It was stated in Wanja Kanyoro Kamau vs. Republic (1965) that a passive attitude following
the commission of a crime will not ordinarily make a person an accessory after the fact; neither
does the non -reporting of a crime.
 Kambi and three others vs. Republi c (1989) KLR 495 (Madan, Law and Potter JJA)
 Where it was held that a prosecution witness was an accessory after the fact of murder,
 as he hid a blood-stained panga which had been used to kill the victims and that although
 he had fore knowledge of the int ended crime and knowledge after its commission, he had
 taken no steps to prevent its commission or to give information to the authorities that it
 had been committed.
 An accomplice is a person concerned with another in the commission of a crime.
 An accessory after the crime may know nothing whatever of the commission of the crime, until
the offender after f1eeing from justice informs the accessory of the same while seeking shelter,
comfort or assistance.
 In such case, the person informed of the crime by the offender would be an accessory, but not
an accomplice.
 The Penal Code does not provide for accessories before the fact, but such suspects are persons
who offer assistance to the actual perpetrators before the commission of the offence.
 This could take the form of providing information, counsel or equipment or facilitation of any
sort to them.
 Such persons are considered as principal offendors
ACCOMPLICES & CONSORTEES

 Criminal association is punishable.
 Complicity and consortment refer to those situations where the accused person associates with
the actual perpetrators of an offence in circumstances which give rise to a presumption that
there was common intention or design to commit an offence.
 A person is an accomplice if he participated as a principal or accessory, in the commission of
the offence.
 In Watete vs. Uganda (2000) BA 559 (Oder, Tsekooko, Karokor a, Mulenga and Kikonyogo
it was stated that an accomplice is a person who has participated in the commission of an
offence as a principal or an accessory, and that the clearest case of an accomplice is where a
person confesses to the participation in the offence, or has been convicted of the offence, either
on his own plea of guilty or on the court finding him guilty after trial. The court may also find
a person to be an accomplice from the evidence recorded in court.
 It was said that while a person who aids and abets the commission of a crime or assists the
guilty person escape punishment is always an accomplice; a person who merely acquiesces in
what is happening or who fails to report a crime is not normally an accomplice.
 Kilili vs The Republic (1977) KLR 80 (Trevelyan and Todd JJ)
o It was held that an agent provocateur may teclmically be an accomplice in the
commission of an offence.
 Maina vs. Republic (1976-1985) EA 286 (1-lancox JA, Chesoni and Nyarangi Ag JJA)
o Took a different view. It held that an agent provocateur, such as a police informer,
whose motive in instigating an accused person to the commission of the particular
offence is detection of crime and capture of offenders and not perpetration of offences,
not the transgression of the law, but securing evidence for the enforcement of public
justice, and his activities in aid of fighting against crime are those of an agent of justice,
and he is therefore not an accomplice and corroboration of his evidence is not

necessary.
 In Rex vs. Mulji Bhanji 108 (Nihill CJ, Sir G Graham Paul CJ and Edwards CJ)it was held
that to render a person an accomplice it is necessary to show he was guilty of the offence
charged. Evidence of accomplices who are called as witnesses requires corroboration,
although the court may convict without such corroboration so long as it has carefully directed
its mind to the danger of convicting without such corroboration.
 In Lento Mhinila vs. R (1963) EA 9. (Windham CJ) it was held that the nature of
corroborative evidence is that which implicates the accused by connecting or tending to
connect him with the crime.
 In Joseph s/o Jeremiah (1954) 21 EACA 279 (Sir Norman Worley Ag P, Sir Enoch Jenkins
Ag VP and Briggs JA)It was held that if in a criminal trial the court fails to warn itself of the
rule of practice having the force of law that he may convict on the evidence of an accomplice
but that it is dangerous to do so unless it is corroborated, the conviction will be quashed even
if there is corroboration, unless there has been occasioned no failure of justice.
 In Uganda vs. Clement W Nangoye (1975) IICB 252 (Nyamuchoncho 3) It was held that
before the court convicts on the uncorroborated evidence of an accomplice, the court must
consider the credibility of the witness and the relation of such witness to the offence and the
part played by him in the commission of the offence. It was stated that it is settled law that an
accomplice must be believed first before his testimony can be acted upon as an exception to
the rule.
 In Gathere s/o Ndegwa vs. Reginam (1954) EACA 220 (Sir Barclay Nihill P, Sir Newnham
Worley VP and Briggs JA). It was held that it was an essential ingredient of the offence of
consorting, defined in the Emergency Regulations, 1952, that from the circumstances of
consortment a reasonable presumption should arise that the per son consorting intended or was
about to act or recently acted with the person with whom he had consorted in a manner
prejudicial to public safety or preservation of public order. In the other words proof of
consortment entitles the court to presume an inte ntion on the part of the accused to act jointly
with his accomplice or to presume that the accused previously acted jointly with his
accomplices.
 Gathega s/o Waweru vs. Reginam It was held that knowledge is the mensrea required for
consortment, that the accused knew that the person he was consorting with had possession of
ammunition.
VICARIOUS LIABILITY
 The principle of vicarious liability does not apply in criminal law, unless a statute expressly
provides for it.
 Vicarious Liability is where a master is liable for the wrongful acts of his servant.
 In Taj Din vs. Rex 42 KLR (Si r J W Barth CJ and Stephens J) it was said that apart from
statute there is no rule of law which makes a person criminally liable for the acts of his
servants. On the facts of the case, the appellant was found not criminally responsible for the
acts or omissions of the porters.
 In Rex vs Arap Kipta1am EALR 102 (Hamilton and Barth JJ) it was held that a man cannot
be criminally prosecuted for the action of his wife where there is no proof of abetment.
 It would appear the principle of vicarious liability applies to cases of strict or absolute liability.
 In Rex, through ARP commandant Nakuru vs Alfred Fielding KLR (Sir Joseph Sheridan
and Hayden J) It was held on the facts of the case that the duty to ensure compliance with the
relevant law was absolute, and the owner of the subject premises was responsible for any
contravention of the regulations even though another person, the actual or true offender, was
also responsible in law.
Inchoate Offences
 The general rule is that the intent to commit a crime is not itself criminal. There is no law
against a man’s intending to commit a murder the day after tomorrow. The law only deals with
conduct.
• Oliver Wendell Holmes (The Common Law, 1881)
 WHAT IS AN INCHOATE OFFENCE?
 Inchoate offences = acts that imply an inclination to commit a crime even though the crime is
never completed
 Anticipatory, incipient, incomplete, and preliminary crimes are all other words for inchoate
crimes
 Because of the social need to prevent crimes before they occur, the common law long ago
established three (3) separate and distinct categories of inchoate crimes;
1. Attempts (Try but fail)
2. Solicitation (Ask another)
3. Conspiracies (Plan with another)
 The dilemma is that no harm yet done
 Person is determined to commit a crime.
 So common law common law comes up with the DOCTRINES OF INCHOATE CRIMES to
help solve this dilemma:
• A person should not be charged with both the inchoate and choate offense, with the
exception of conspiracy which can be a separate charge.
• Lesser penalties should ideally be imposed for inchoate crimes, but in many cases, the
penalty should be exactly the same as for the completed offense.
• Inchoate crimes should have specific intent, spelling out clearly what the mens rea
elements are.
• Some overt action or substantial step should be required in the direction of completing
the crime.
 Inchoate crimes share;
• Mens rea: specific intent to commit completed crime.
• Actus reus: some steps toward accomplishing the crime, but not enough steps.
ATTEMPT
 Criminal attempt, in many ways, is all about failure (not being a very good criminal) 
 Purposely or knowingly engage in conduct that, if successful, would be a crime. (Section 388
of the Penal Code)
 No defense that the crime is impossible (gun misfires)
 An attempt to commit an offence is punishable although the accused person has not achieved
his objective and the actus reus of a completed offence is not committed.
 E.g Shooting at somebody and missing. Holding up a cash register to only find KS. 5. Stealing
a CD by taking it out of its case, stuffing it down your pants, and having it break in half before
you get out of the store (the law includes strokes of luck in its conception of failure).
 Rex v. Scofield (1784)

• “intent may make an act, innocent in itself, criminal; nor is the completion of an act,
criminal in itself, necessary to constitute criminality.”
• By 1800s: All attempts whatever to commit indictable offenses, whether felonies or
misdemeanors are misdemeanors, unless by some special statutory enactment they are
subjected to special punishment.
RATIONALES
 This focuses on dangerous acts and looks at how closely the defendants came to completing
their crimes
 Aims to prevent harm from dangerous conduct
 It also focuses on dangerous persons
 Looks at how fully defendants have developed their criminal purpose
• Aims at neutralizing persons
ELEMENTS OF ATTEMPT LAW

 The elements were established by the case of ISMAIL BINFARAH V THE QUEEN 183
(1956). They are:
1. An intention to commit an offence.
2. A beginning to put the intention into execution by means adapted to its fulfillment.
3. A manifestation of the intention by some overt act.
 HOLDING
• Applying these principles to the facts of the case, it was held that the accused had tried
to force the window of the car, had acted furtively, moved off as soon as the police
arrived, and had denied falsely tampering with the car at all.
 ATTEMPTING TO COMMIT THE IMPOSSIBLE?
• Suppose D attempts to sell Cocaine to a plain clothes policeman for £50. D is arrested
and it turns out – to everyone’s surprise - that the substance is talcum powder. Can D
be guilty of the attempted supply of illegal drugs?
 REPUBLIC V RAPHAEL S/O SONGARETI (1973)
• The accused smeared a substance believed to be a deadly poison on the drinking straw
of a person with the intention of killing that person when the latter used the straw
shortly thererafer.
• It was held that where there is a clear intention to commit an offence and overt acts are
done which manifest the intention and start to put into effect, an attempt has been
committed and it matters not whether the means employed were adequate to achieve
the end sought
• That amounted to attempted murder, even where the belief is, mistaken and the
substance used is not deadly.
ACTUS REUS IN ATTEMPT
 Section 388 (1) – So long as the accused commits the actus reus, whether he did all that is
needed for the commission of the offence, or whether he prevented himself or voluntarily
refrained from accomplishing the crime.
 Section 388 (2) – Immaterial that the commission of the offence has become impossible.
MENS REA IN ATTEMPT
 As a general rule, the intention required for an attempt to be committed will be the same as the
intention required for the completed offence.
ATTEMPT AND MERE PREPARATION

 The law requires that the actus reus of attempt go beyond mere preparation.
 In other words there must be an act which is immediate and not merely remotely connected
with the intended offence.
WHERE IS THE LINE BETWEEN PREPARATION AND ACTUAL ATTEMPT?
 The commission of an offence has many stages, from the point of inception, when the idea of
committing the crime is born, to the advanced stage of the execution of the crime and its
completion.
 Somewhere along the line it may be said that that an attempt has been made to commit the
offence, that the accused has passed the stage of mere preparation to that of attempt.
 MUSSA S/O SAIDI V R (1962)
 Court suggested a test as to what is sufficient actus reus of attempt. The court said that the act
must be of a character as to be incompatible with any other reasonable explanation, other than
the intention to commit the offence alleged.
PREPARATION AS AN OFFENCE
 Section 77: Offences relating to subversive activities
 Section 308 (1): Preparations to commit a felony, where accused arms himself with dangerous
weapons
 Section 308 (2): Having an article for use in the course of a burglary, theft or cheating.
 Section 308 (3): Acts of being disguised with intent to commit a felony, and being in a building
with intent to commit a felony.
SOLICITATION, INCITEMENT & PROCURATION

 Section 391: Offence for a person to solicit or incite or attempt to procure another person to
commit an offence. (Procuration in Kenya or elsewhere.)
 Procuration criminalized by Section 20 (3), which makes it an offence for a person to procure
another to do or omit to do something of such nature that if it was done by the procurer it would
have amounted to an offence.
 Liability of a procurer is equivalent to that of the principal offender.
FAILING TO PREVENT AN ENVOY

 Section 392 makes it a misdemeanor for a person to fail or neglect to prevent the commission
of a felony.
 Actus reus - Omission to prevent the commission of the offence
 Mens rea – Knowledge and negligence
 KIILU & ANOTHER V REPUBLIC (2004)
• Test applied to determine whether or not the appellants acted negligently is the test of
foreseeability and the test of a reasonable man.
• Head master and deputy, school set ablaze by students. Set free on appeal as they could
not have foreseen as reasonable men what the students were up to.
CONSPIRACY
 Classified as a felony, by virtue of Section 393, if the conspiracy is to commit a felony, but a
misdemeanor, by Section 394, if the offence intended to be committed is itself a misdemeanor.
 Penal code doesn’t define conspiracy. It has been defined in cases law.
 REX V MULJI JAMNADAS & OTHERS (1946)
• Consists of an agreement of two or more people to do an unlawful act by unlawful
means
 Two elements to conspiracy;
1. Conspiracy to effect an unlawful purpose
2. Conspiracy to effect a lawful purpose by unlawful means.
 Both amount to offences if an agreement is proved
 ‘Unlawful’ refers to both civil wrongs as well as crimes.
 ONGODIA & ERIMA V UGANDA (1967)
• The employers who forced guys into a lorry.
CONSPIRACY OFFENCES
 Conspiracy to defeat justice (S. 117)
 Conspiracy to defile (S. 157)
 Conspiracy to murder (S. 224)
 Conspiracy to defraud (S. 317)
 Conspiracy to commit a felony (S. 393)
 Conspiracy to commit a misdemeanor (S. 394)
 General Conspiracy (S. 395)
PROOF OF CONSPIRACY
 Section 10 of Evidence Act
 Provides that where there is reasonable ground to believe that two or more persons
have conspired together to commit an offence, anything said, done or written by anyone
having such intention at any time after the intention was first entertained by any one of
them is a relevant fact against each of the conspirators and for the purpose of proving
the existence of the conspiracy and that the accused person was party to it.
OFFENCE IS COMMITTED BY TWO OR MORE PERSONS

 There must be two or more conspirators, since the offence cannot be committed where there is
no agreement.
 One person cannot conspire.
Punishment, Sentences and Post-Conviction

Orders
 The sanction for the commission or omission of a crime is entrenched in the Penal Code at
section 24 which mentions some of the punishments that may be imposed by the court
 They include
o death,
o imprisonment,
o detention,
o fine,
o forfeiture,
o payment of compensation and
o finding security to keep the peace and be of good behaviour
 By virtue of Section 12 of the Criminal Procedure Code, a court may pass a lawful sentence
combining any of the sentences which it is authorized to pass
Punishments for children

 The Children’s Act at section 190 excludes with respect to a minor the death penalty and
imprisonment.
o Their punishment is spelled out in section 191 as
 bonds,
 probation,
 rehabilitation,
 fine,
 compensation,
 committal to an institution and
 counselling
Punishments for the defence forces

 The Kenya Defence Forces Act at section 180 and 181 mentions punishments to be lawfully
imposed by a court martial as
 death,
 imprisonment,
 dismissal from the defence forces,
 reduction by rank by one rank,
 forfeiture of seniority in the rank,
 fines,
 severe reprimand,
 admonition and damages
Theories of punishments
 There are four objectives of punishments:
1. Retribution
2. Deterrence
3. Prevention
4. Reformation
 In sentencing the court seeks to achieve any of the four objectives or any combination of them
Retributive punishment
 This is also known as punitive or retaliatory punishment.
 The court imposes retribution seeking to avenge the hurt suffered by society under individual
victim of the offence
 The punishment is proportional to the offence committed
 It is founded on the notion ‘an eye for an eye’, ‘a tooth for a tooth’, ‘tit for tat’.
Deterrent punishment
 This is designed to deter persons from committing crime.
 It sets an example to the rest of the society about what will happen to a person who commits a
similar offence
 It may take the form of:
o death,
o fine or
o imprisonments
Preventive punishment
 They are meant to prevent the repetition of the crime by disabling the defender
 It represented by death penalty and imprisonment
Reformative punishment
 It seeks to reform the offender by showing him the evils of his ways
 The objective is rehabilitation
 It views crime as a disease and the offender as the patient in need of treatment and not
punishment
1. Death penalty
 It is provided for in the Penal Code section 25,for offences of:
o Treason
o Administration of oaths to commit capital offences
o Murder
o Robbery with violence
 The death penalty provided for under the Penal Code is mandatory in that law does not give
the court any discretion in the matter. Once found guilty of murder, he must be sentenced to
death.
 Section 25(1) of the Penal Code fixes the sentence of death
 Mutiso v Republic where it was held that Section 204 of the Penal Code that provides the
mandatory death sentence contravenes the Constitutional provisional on protection against
inhumane or degrading punishment. Although the constitutional provisions do recognize death
penalty, they do not make it mandatory
 The Kenya defence forces act
o The death penalty is prescribed for the offences of:
 Aiding the enemy
 Communicating with the enemy
 Espionage
 Misconduct in the action

 Mutiny
 Failure to suppress mutiny
 The death penalty is not mandatory but discretionary
 Section 184 of the act requires that a sentence of death should not be carried out without the
approval of the president
 Mode of executing a death sentence
o The manner of execution is created under the Penal Code and the Prisons Act at section
69, it is the hanging by the neck.
o In the Armed Forces Act, execution is by a firing squad.
Exceptions to the death penalty
 These exceptions are allowed to minors and pregnant women
 In Mangi v Republic, it was observed that section 324 of the Criminal Procedure Code gives
the accused the right to move a motion where there is only one penalty for capital offences
namely death that he ought not to be sentenced to death
 A female convicted of murder may show that she is pregnant and therefore cannot be sentenced
to death while
 A minor may show that though convicted of a capital charge, she is under statutory age- under
Section 211(1) of the Penal Code for minors below 8yrs, and section 25(2) for minors above
8yrs old.
 The president exercising the prerogative of mercy may commute the sentence of pardon the
offender by virtue of Section 14(1) of the Penal Code
 Republic v Wamboi Kamau, the nine year old faced a charge of murdering an infant. She was
acquitted of the murder charged after it was resolved that the murder happened when she was
below the age of eight years.
 In Turon v Republic, it was held that under Section 25 of the Penal Code, a death sentence shall
not be pronounced on a person under the age of 18 years, the convict should be detained during
the president’s pleasure
Convictions on several capital offences

 In Wambura v Republic it was held that where more than one count of murder has been charged
the convictions entered on two or more counts the practice is to impose the death sentence in
respect of the first of such convictions
o I.e. Where the counts are brought for first, second and third degree murder only
first degree murder will attract a death sentence
 In Gachuru v Republic it was held that when a person is convicted for more than one capital
charge the sensible thing to do is to sentence him to death on only one of the counts and leave
the others in abeyance including any sentence of imprisonment. There is no sense at all in the
practice of awarding multiple conviction where a capital offence is involved
 Non-joinder of capital offences with other offences
o The rule is no other offence should be charged jointly with a capital offence as
observed in Yowana Sebuzukira v Uganda
2. Imprisonment
 This is provided for in section 26 of the Penal Code
 The duration of the sentence is at the discretion of the court guided by the legislation creating
the offence and depending on the circumstances of the offence and that of the offender
1. Section 26(2) prescribes life imprisonment but the court has discretion to award a shorter
term
2. Section 26(3) provides an alternative of a fine either in addition or to substitute
imprisonment
 A sentence of imprisonment by virtue of section 333 of the Criminal Procedure Code starts
from and includes the date on which the sentence was pronounced
Factors considered for imprisonment
 The following factors are considered against the accused
1. Gravity of the offence
2. Prevalence of the offence in the locality (deterrent sentence)
3. Prevalence of the offence within a given period of time
4. Whether the accused has a criminal record (imprisonment)
5. The negative conduct of the accused (rehabilitation)
6. The moral blame worthiness of the accused

 The following factors are considered in favour of the accused:
1. The age of the accused
2. The general circumstances of the accused
3. Whether the accused is a first time offender
4. The period the accused spent in remand
5. Whether the accused is repentant
6. Whether the accused pleaded guilty
7. Loss of employments following arrests
8. The conduct of the victim of the crime
 In Rex v Daniel Abraham, a defiled complainant had conducted herself for sometime as a
grown up person and was therefore considered as one with loose morals and had consented to
the appellants act
 In Musyoki v Republic where a 14 year old had written a romantic letter to the appellant was
held to have showed to that the girl was friendly and had encouraged to the defilement
Legality and justification of imprisonment
 Upon imprisoning a sentence particularly a heavy one:
1. The court should give reasons
2. The court should only impose a maximum penalty of imprisonment where there are grave
circumstances justifying the imposition of such maximum sentence
 A sentence of imprisonment in excess by that prescribed by law in imposing the penalty is
illegal
Joint offenders
 Where several persons are charged upon the same conviction they ought to be subjected to
punishment of similar severity unless they are of good reason of disparity
 In Marando V Republic where the appellant a first time offender had been sentenced to 4 years
of prison while his co-accused sentenced to a day’s imprisonment. It was held that imposition
of different sentences on two people who had been convicted on the same offence was in wrong
principle except for good reason
 In Mutunga v Republic it was held that unless there are special circumstances, uniformity
of sentencing is a criminal justice principle
Suspension of imprisonment
 An imprisonment sentence may be suspended in cases where the offence is minor
 In Republic v Kiritta it was held that the provision for suspended sentences under section 336
of the Criminal Procedure Code does not relate to felonies or serious offences punishable by a
substantial number of years in prison i.e offences created under section 4(a) of the Narcotic
Drugs and Psychotropic Substances (Control) Act
Remission of imprisonment
 Under the Prisons Act section 46, part of a prisoner’s sentence of imprisonment may be
remitted
 Right to remission is available to a person imprisoned by one sentence or consecutive sentences
for a period exceeding 1 month and the entitlement is one-third of the sentence
 Remission is not automatic it is earned by good conduct and it is not available until the prisoner
has served one calender month
 None can be granted to persons serving a sentence nor detained during the president’s pleasure
 The right may be lost due to an offence against prison discipline
Imprisonment and child offenders
 Imprisonment is restricted where a child is concerned
 It is outlawed by section 190 of the Children’s Act
 In Kaisa v Republic it was held that rehabilitation is the most important factor when
considering child offenders
3. Removal from Kenya

 Non-citizens of Kenya convicted of an offence punishable with imprisonment for a period not
exceeding 12 months under section 26(a) of the Penal Code may immediately or after
completing the sentence of imprisonment may be removed from Kenya and banish them
 Where the offence is punishable with imprisonment for a period in excess of 12 months the
order of removal is mandatory
 The order of removal is directed to the Commissioner of Police by the court
4. Fines
 The principles governing imposition of fines is set out in section 28 of the penal code.
 Section 28(1) where no sum is expressed to which the fine may be extended to which the fine
may extend, the amount of fine which may be imposed is unlimited, but not excessive.
 The imposition is by the discretion of the court.
 Section 228(1)c where a fine is imposed whether with or without imprisonment, the sentencing
court in its discretion may direct that in the fault of payment of fine the offenders suffer
imprisonment for a certain term
 The imprisonment in default should be in addition to any other imprisonment to which the
offender may have been sentenced.
 The court may also warrant the levy of the amount of fine on the movable or immovable
property and send under warrant:
1. The distress warrant is not to be issued in cases where the offender has served the whole
of the period of imprisonment in default of fine
 Matters taken into account when imposing a fine:
1. Ability to pay as stated in Rex v Murefu Munyoki where it was held that regard should
be heard as to the pecuniary circumstance of the offender together with the magnitude
of the offence. Fines which are unlikely to be realized should not be imposed in petty
cases
2. Reconciliation which favours imposing a fine in lieu of imprisonment as it would serve
the purpose of settlement between the two parties
5. Forfeiture
 It is ordered in respect of property which has been used in connection with the commission of
crime
 It is provided for under the Penal Code
 In Munyao Mu v R it was held that forfeiture order can only be made where it is expressly
provided for and the court ordering it must specify the statutory provisions of which the order
of the court is made
 In Tom Ogola Lala v Republic Mombasa it was held that unless expressly authorized by statute
the court has no inherent penal powers to either order for forfeiture or disposal of property of
a person which has come within its purview.
 This is so because the court does not acquire any property in the article brought before it and
search article is seized to be disposed off according to the law:
1. Where there is no law directing how such article is to be disposed off it must be returned
to the person from whom it was seized
Forfeiture under the Penal code
 This is provided for under section 29 of the Penal Code following a conviction of an offence
under section 118 and 119 of the Penal Code
 A property that passes to the offender in connection with the commission of he offences should
be forfeited to the State i.e surrender to the State
 When the property can not be forfeited the value of the property should be forfeited and the
handling of the money for the property so forfeited should be dealt with at the discretion of the
AG
 Section 30 provides for the forfeiture or suspension of a right to carry on a business
Forfeiture under other statutes
 Under section 14 of the Forests Act an order for forfeiture may be given made that the tools
used in commission of the offence be surrendered to the state as held in Muya v Republic
 Under section 213 and 214 of the KDF Act, forfeiture is provided for and is to be recovered
from the pay of the condemned member of the armed forces
 Under section 7 of the Narcotic Drugs and Psychotropic Substances Control Act, forfeiture if
land used for cultivation of a prohibited plant is provided for
 Under section 20 of the same, forfeiture od any machinery, equipment, implement or other
article used for the commission of any offence under the act should be surrendered to the
government
Forfeiture of reconnaissance
 This is whereby the accused attending court on a bond forfeits any security that he or any surety
had given to the court
 Where a person had stood surety of the accused and the fails to attend court the surety will
have deemed to be forfeited the reconnaissance that he had entered into for the benefit of the
accused as held in Subuga v Uganda
6. COMPENSATION.
 By virtue of section 31 of the penal code, be ordered to make compensation to a person injured
as consequence of the offence.
 Section 28(2) determines the quantum of compensation and section 175 of the Criminal
Procedure Code states that a fine imposed by the court may be applied in meeting expenses
properly incurred in the prosecution or in the payment for any person of compensation for loss
or injury cost by the offence
 In Haining and others v Republic it was held that an order of compensation must be made
against a government servant when loss has been caused to the government.
 In R v Maria it was stated that the order for compensation alone does not constitute a sentence
Elements of compensation
 Three elements as laid out in Selemani s/o Misusi v Republic are:
1. Compensation may be ordered only when the person entitled should have suffered material
loss on personal injury
2. Where compensation would be recovered in a civil suit
3. Where such compensation is deemed fair and reasonable by the court
 In Republic v Rashidi Muhode it was held that where the accused person clearly has no means
of paying he should not be burdened with the compensation orders which he can not meet and
which are likely to expose him to a further prison term in default
Default of payment on compensation
 In Regina v Mohammed s/o Mwamba, it was held that the criminal Procedure Code does not
provide for imprisonment in default for payment in compensation instead it provides for selling
the accused property and a warrant for the amount
 In Des Raj Sharma v Reginam It was held that section 31 of the Penal Code does not authorize
the imposition of a sentence of imprisonment in default of payment of compensation
 Arguments against compensation
 In Republic v Rashidi Muhode it was observed that:
1. compensation orders could result to hardships where the accused has little or no means to
pay
2. Making the compensation order may amount to punishing the accused to be poor
Compensation orders against the state

 In Republic v Mansukhlal Datani a compensation may be ordered against the state in cases
where the charges against the accused are frivolous in the sense of being futile and silly
7. Costs
 In criminal cases section 32 of the Penal Code makes a provision for costs arising from the
prosecution
 Such order on costs would be in addition to any other penalty imposed
 Section 171(2) of the Criminal Procedure Code empowers the court which acquits the accused
of an offence to order a private prosecutor to pay costs to the accused
 Under section 181 of the Evidence Act the award of costs should be made in cases of default
or delay by banks regarding entries in a bankers book for the purpose of legal proceedings
where such default has exposed the applicant to expenses
Costs in public prosecution
 In Rex v Sakwa Kisa a general rule that in criminal cases the cost of a prosecution should be
born by the state was laid out
Costs in private prosecution
 In Uganda v Edirisa it was held that costs may only be awarded on acquittal.
 A private prosecutor should not be ordered to pay the State or any other person other than the
accused
Default of payment of costs
 Under section 334 of the Criminal Procedure Code where the person ordered to pay costs fails
to pay, distress may be levied against his property
8. Security for keeping peace and good behaviour

 The court may order a convictee to enter his own reconnaisance, security upon conviction on
condition that the convict shall keep the peace and be of good behaviour for such time as the
court shall fix
 Under security without a full trial the order is made where the court is informed that a Larson
is likely to commit a breach of peace and public tranquility
9. Discharge
 Upon convicting an offender under section 35(1) of the Penal Code the court may instead of
sentencing to punishment order the discharge of the offender based on the nature and character
of the offence
 The discharge may be conditional (not exceeding 12 months), or absolute .
 Under section 35(2) of the Penal Code where the convictee commits another offence during
the period of the conditional discharge he becomes liable to be sentenced for the offence in
respect of which he had been discharged
10. Cumulative and concurrent sentences

 Under section 37 of the Penal Code where a person after conviction is convicted of another
offence the established rule of practice is that the sentences should run concurrently unless
there are special circumstances as held in Owiti v Republic
 In Martin Bien Francis v Regina it was held that it is wrong for trial court to give comparatively
light sentences on each count to run consecutively when the offences are unrelated so that the
total sentence to be served is within the jurisdiction of the court. In such cases the trial court
should impose an adequate sentence on each count making them appropriate to run
concurrently
11. General punishment for misdemeanors

 Section 36of the Penal Code provides for imprisonment for a term not exceeding two years
with or without a fine
12. Sentencing escaped convicts

 They are sentenced to finish the jail term they had been convicted for and in addition they are
convicted for any for any crime they committed while in escape.
13. Reconciliation
 Under section 176 of the Criminal Procedure Code the court may seek to promote and effect
reconciliation between the accused and accuser
 The reconciliation provision covers offences of a personal or private nature and does not
include all felonies and some misdeanours
14. Restitution
 Under section 171 of the Criminal Procedure Code, the court may order restitution of property
taken from an accused person to the owner
15. Probation of offenders

 This is a sentence provided for under the Probation of the Offenders Act whose objective is
rehabilitation under the supervision of a probation officer
 It is preferred for first time offenders and the court has discretion to impose any punishment
 The condition imposed is that the accused is not to commit any criminal offences during
probation failure to which he would be liable to sentencing on the first conviction and the
breach will be assumed to a commission of another offence while on probation
16. Borstal institutions

 Under section 5 of the Borstal Institutions Act, any person found to have attained the age of
15 years but under the age of 18 is required before sentencing him to consider his character
and previous conduct and circumstances of the offence and whether if he should under go
training in a bostal institution
17. Remedies
 Section 6 of the Stock Produce and Theft Act provides for a reward to anyone who has given
information leading to the conviction of another in cash not exceeding a 1000/=
 The Trespass Act section 12 provides for ejectment from land of persons following conviction
of trespass
 Narcotic Drugs and Psychotropic Substances (control) Act deregisters corporations found to
have committed an offence under the act
 Under section 15 of the same act the name of the medical practitioners may be removed from
a relevant professional register and be denied a licence if convicted of an offence under the act
 Under section 12 of the same act police are directed to destroy all prohibited plants found on
any land
 Section 47 of the Children Act creates rehabilitation schools and remand homes to provide
accommodation and protection of children to aid in the training and rehabilitation of the
children
Criminal Law 2
Crimes Against the Person
Manslaughter
 Manslaughter is defined in section 202 and 205 of the penal code. It is unlawful killing without
malice aforethought. Its principal elements are:
o (a)the causing of the death of another person
o (b) By unlawful act or omission, and
o (c)death within a year and a day.
 The distinction between it and murder lies in the absences of malice aforethought.
 This means that the actus reus elements for the same as those required for murder, but the mens
rea falls short of malice aforethought .in Wycliff Olouch Odhiambo v Republic there were
evidence that the appellant did indeed stabbed the deceased and caused his death but there was
doubt as to whether he had malice aforethought .His conviction of murder was substituted with
manslaughter
Mens Rea
 Mens Rea for manslaughter falls short of malice of aforethought.
 It could be on account of a variety of thoughts including Presence of mitigating provocation or
extenuating circumstances.
 Malice aforethought is mitigated by the elements of provocation, defence of defence,
intoxication, mistake of fact and negligence among others.
 A person acting under the influence of such extenuating circumstances is said to have a less
guilty or morally blameworthy mind, and should be convicted of manslaughter rather than
murder.
 The principles governing provocation, excessive defence of a person or property, mistake of a
fact and intoxication were discussed earlier, showing the extent to which the presence of these
factors influence the reduction of the offence of murder to that of manslaughter.
 In Rex v Zakayo (1947), it was held that in a trial for murder where a defence is put forward
and rejected, the court still has a duty to consider the possibility of manslaughter if there is
evidence of support it.
 In Rex v Mbologa, it was held that proof that an accused person had lied in his defence to
charges of murder does not absolve the court from ascertaining from the whole evidence
whether the crime is murder of manslaughter.
Intention to commit a Dangerous Act.
 Elements of intention is sufficient in cases where there is intent to do an act which is dangerous
or which endangers life.
 It was held in Director of Public Prosecution v Newbury and another (1976) that a person is
guilty of manslaughter if it proved that he intentionally did an act which was unlawful and
dangerous and that act inadvertently caused death.
Knowledge.
 An element of Mens Rea is also observed and was considered in Rex v Petro Mangongo. It
was stated that in Rex v Mgambo bin Kwenyema (1934), that if a person feloniously fires
another in such circumstances as would make the killing of that other person manslaughter ,
but by accident he hits a third person whom he never intended to hit at all, he is guilty of
manslaughter.
 He would be deemed to have known that their act was likely to cause dangerous injury or even
death to someone.
Actus Reus
Unlawful Act
 The actus reus required for the offence is an unlawful act or omission causing the death of
another person. In Rex v Mutono s/o Luigo and other. it was held that that to convict to
manslaughter it is only necessary to find that the act of the accused was unlawful one
A dangerous act
 The actus reus required for the offences is an unlawful act or omission causing the death of
another person. The unlawful act must be one which is dangerous and likely to cause injury to
another. It is not necessary that the accused should have known that the act would likely to
cause such injury, what is the important is that a reasonable person considering such act would
recognized the danger. The test whether an act is a dangerous is an objective one.
Minor assault
 A minor assault, though an unlawful act, cannot be a basis for a charge of manslaughter as the
same is not properly dangerous and likely to cause injury. The accused should not be
convicted of manslaughter where death results from a minor assault,but of a lesser of lesser
such as assault Rex v Petro Mangongo s\o Katwa
Proof and cause of death
 Since the offence is that causing death they must be proof death. In Amir began and other v R,
the appellants were convicted of manslaughter of girl whose death they caused by beating.
There was ample of the beating, but no specific medical examination of the body was made to
exclude the possibility that she had died of other possible causes. The court substituted to
assault
PENALTY FOR MANSLAUGHTER

 The penalty is prescribed in section 202 of the penal code is the maximum of life imprisonment.
The severity of the offence depends on the circumstances of the case. In Gedion Kenga Maita
v Republic Mombasa CACRA NO.35 of 1997(Omolo, Akiwumi and Lakha JJA), it was stated
that in manslaughter cases the court has discretion to assess the appropriate sentence, and is
not bound to award the maximum of sentence of life imprisonment.
 The circumstances that ought to be taken into account include the circumstance of the accused
person such as whether he is a first offender, how the circumstances of the accused person such
as whether he is a first offender, how long he has been in prison awaiting trail and things of
that nature.
 In the matter the appellant did not have a wife and children, and his brother insulted him saying
he was a useless man with no wife and children and that upon his death nobody would
remember him. The brother then kicked the appellant, who lost his cool, ran and got appeal,
the sentence was reduced to five years imprisonment. In Mwacha v republic (1990-1994) EA
431(Kisanga, Ramadhani and Mnzavas JJA)
BURDEN OF PROOF
 The burden of establishing manslaughter lies with the state; there is no onus on the accused to
prove his innocence. This point was made in Kioko v Republic[1983] KLR 289[1982-88] 1
KAR 157( Madan, Kneller and Hancox JJA), where the trail court had remarked that certain
acts and missions were inconsistent with his innocence, and on appeal it was said that that was
wrong as it had the effect of shifting the burden of proof to the accused.
NON FATAL OFFENCES

Wounding
 It is defined as an injury taking the form of an incision or puncture which divides or pierces
any exterior membrane of the body. This means that the skin must be pierced or punctured.
This would be the ideal charge for cases where a person has inflicted knife wounds on another
or has caused lacerations or tearing of the skin.
 It is defined in section 237 of the penal code as a misdemeanor. In Rahim Rajan v R [1958]
EA 448 ( Sir Aulley Mckisack CJ), the court considered the definition of ‘ wounding’ and
held that although the medical evidence was not clear on the nature of the injury sustained by
the complainant, there was ample evidence to sustain a holding that there was a wound as the
whole skin had been punctured or divided
Grievous Harm
 This is an assault causing grievous harm to another in terms endangering life and health. It
applies in cases of really serious injury or harm.
 It is a felony punishable by maximum penalty of life imprisonment. The offence is defined in
section 234 of the penal code
The actus reus element
 The Actus And The Injury
 The grievous act could be through harm could be through maiming, disfiguring,
disabling or other equivalent act.
 The terms ‘grievous harm’, ‘harm’ and ‘maim’ are defined in section 4of the penal code to
refer to really serious injury which is permanent or close to permanent
 In Juma lubanga v republic (1972) HCD225(LUKE J), had held that ‘grievous harm’ as
defined in the penal code involves a consideration whether the harm is such as seriously to
interfere with health or comfort, and the answer to the question may depend on the nature of
the injury and the circumstances of the case.
 In the opinion of the court in that matter the knocking out of a tooth with a fist was not by itself
a maim or dangerous harm or harm which causes permanent or serious injury to health nor
amounting to permanent disfigurement.
 In REX V KIBARA (1915-1916) 6 EALR 133 (Hamilton cj), it was held that hurt cannot be
held to be grievous, when it is only a flesh wound where there is evidence that the man would
recover and that his life is not endangered
 It is Duty Of Court to Determine whether Injury is Greivous
 In Regina v Ali s/o Fakili (1953-57)2 TRL 44 (Abernethy J) , it was held that is not for a
medical officer of health to decide whether an injury is grievous harm or not. He might express
his opinion to the police, through the police form, that he considers an injury to be grievous,
but it is the duty of the court, on the evidence before it to decide whether it amounts to grievous
harm as defined in the penal code or not. It was further held that a broken arm is not necessarily
grievous harm. It is only grievous harm if it results in the destruction or permanently disabling
of the limb or endangers life or seriously or permanently injures the health of the person injured
or causes any permanent or serious injury or disfigurement
Injury May be Caused Indirectly
 The injury need not be directly caused by the accused. It suffices that he creates the situation
which leads to the hurt.
 In Republic v Msungwe (1968)EA 203 (Biron J), the accused assaulted the complainant and
then chased him with a knife. While running away from the accused the complainant tried to
jump over a ditch but fell and broke his leg. The accused did not attack him while he was lying
in the ditch, but left him there lying semi-conscious. The complainant was to be later
hospitalized for five months and his leg amputated. The accused was convicted of grievous
harm, and an appeal against the conviction quashed
ASSAULT
 Intentional application of force to the person of another directly or indirectly in such a way as
to create a reasonable belief in the mind of the other person that force is about to be used
against him or the intentional application of unlawful force against another person.
 Provided for in sections 250 to 253 of penal code.
 Offence is a misdemeanour punishable by a maximum of a year’s imprisonment.

 Mere words do not amount to an assault- Rex v Mbuthia s/o Kaguru
 Rex v Gaturo s/o Njau- appellant approached in anger elders who were hearing an alleged
case of trespass by the appellant’s son. He seized a heavy pointed stick, raised it
threateningly like a spear and demanded to know which was the senior elder so that he
might kill him. The elders retreated in fear. It was held that the appellants conduct
amounted to an assault.
 Provocation is not a defence for assault and battery.
AGGRAVATED ASSAULTS
1. Actual bodily harm
 Provided for in section 251 of penal codes.
 Ingredients consist of assaulting the complainant and occasioning actual bodily harm on him.
 Stephen Shida Ndaa v Repubic – a person pleads guilty to a charge under section 251 of the
penal code if he admits assaulting the complainant and causing him actual bodily harm.
2. Assaults on person protecting a wreck
 Section 252 of the penal code criminalises assaults on persons protecting wrecks.
 Envisages magistrates , officers and other persons lawfully authorised in execution of their
duties or concerning the preservation of any vessel.
3. Assaulting, Resisting and obstructing a police officer.
 Assaulting a police officer
o Officer must be on duty
o It is a serious offence under section 253(a) of the penal code to assault a police officer
who is acting in execution of duty and it is also an offenec under section 253(b) of the
penal code to resist a lawful arrest.
o Offence will not apply to an assault on an off-duty officer; such an assault would fall
under a common assault.
o Rex v Wakaba s/o Waithaka- appellant and others had assaulted police officers who
were attempting to arrest them on the order of a chief for illegal possession of
intoxicating liquor. There was no evidence that there was any order of the chief
prohibiting such liquor withing his area of jursdiction. It was held that without such
evidence the police officers were not acting in the due execution of their duty.
o The persons were therefore entitled to resist their assault however they were not entitled
to use more force than was necessary in the circumstances.
Knowledge that officer is on duty irrelevant
 Where policemen are asssaulted in the execution of their duty, it is immaterial whether or not
the accused knew that they were acting in execution of their duty.
 Section 253(b)
 Waera s/o Madoya and others v Republic defence can be raised if the accused had a reason to
honestly belive that the person assaulted was not a policeman.
Obstructing a police officer

 Section 253(b) – it is an offence to obstruct a police officer in the due execution of his duties.
 Section 108 of the Kenya Defence Force also makes it an offence to obstruct a police officer.
 The officer must be executing duty
 Offence is established only if the officer was in the process of executing the duties detailed to
him.
 Marijani v Uganda- a police officer was instructed to go to the market specifically to look out
for unlicensed hawkers. He came across some hawkers and told them to sell their wares in the
market instead of hawking around. He identified himself to prove that he was an officer on
duty.
o The hawkers surrounded him and assaulted him.
o They were convicted for assaulting a police officer in the execution of his duties.
Resisting arrest.
 Section 253(b) makes it an offence to resist an arrest by a police officer.
 The offence is not established,where the act complained of is by a person who is already in
lawful custody
 Lui v Republic- appellant refused to leave the dock when ordered to do so by court. He resisted
removal and created a disturbance which interrupted court business. He was convicted, among
other things, resisting arrest.
 On appeal, the conviction relating to resisting arrest was quashed.
 Paulo s/o Busondo and another v Reginam- where an accused person is charged with acts
intended to prevent arrest he may be convicted of the offence of wilfully obstructing a police
officer in execution of his duty.
BATTERY
 Committed where some force is applied on the complainant.
 Associated with physical striking, but a minimal application of force is usualy sufficient.
 The application of force may be indirect, meaning that there need not be any physical contact
with the assailant.
Murder
 Murder
 Murder is the unlawful killing of a human being with malice aforethought.
o Malice aforethought premeditated or deliberate
Common law
 Murder carries a mandatory life sentence. A judge cannot pass a lesser sentence. Except where
the partial defenses exist and the charge is lowered to manslaughter.
 Principal Elements of murder
1. Causing of death of another person
2. unlawful act or omission
3. With malice aforethought
4. Death occurs within an year and a day after the act or omission.
 For death in a hospital the date of the charge ought to be the date of the unlawful act causing
the death rather than the date of the death itself.
 For murder one has to establish;
I. Actus reus
II. Mens rea
THE ACTUS REUS

 This is the unlawful killing of a human being.
 This may be through an act, omission and result
Elements;
1. The act or omission

2. The result or consequence
Note; evidence must be present, proving that the act or omission was indeed the cause of death.
PROOF OF DEATH
 Proof of death is essential and can be proven through medical evidence or other means which
produces post-mortem reports.
 Where the body cannot be found the death is presumed or proved to be circumstantial evidence.
 In KIMERU V REPUBLIC it was held that evidence must be such as to compel the inference
of death and must be such as to be inconsistent with any theory of the alleged deceased being
alive. The appellant in this matter had been charged with the murder of his wife from whom
he was separated and against whom his petition for divorce had failed. He was ordered to pay
maintenance to his wife and he was in the meantime cohabiting with another woman. The wife
disappeared from her room on a day it was Alleged the appellant had visited her. Her father
later received a letter alleging that she had died is road accident. Her body was never recovered
and there was no evidence at all that she had died in a road accident.
• The husband was convicted of murder, but the conviction was quashed on appeal.
 CAUSE OF DEATH
 The cause of death often links the accused to the death and also the conviction.
 In Paulo s/o Mabula v Reginam;
 It was held that in capital cases the state should tender any medicinal evidence as to death that
may be available.
 Especially where the accused alleges that the wound was inflicted accidentally as it would be
vital to the interest of justice for any medical evidence to be placed before the trial court.
CAUSATION ISSUES
 The death must not be caused by the immediate act of the accused.
 Section 213 of the Penal Code defines causing death to include acts which are not the
immediate or sole causes of the death.
 The accused would be held responsible for another person’s death although his act is not the
immediate or sole cause under;
o He inflicts bodily injury on another person and as a consequence the person undergoes
surgery or treatment which causes death.
o He inflicts injury that would not have caused death if the injured person had submitted to
proper medical or surgical treatment or had proper precautions as to his mode of living.
o He by any acts hastens the death of a person suffering under any disease or injury
o An act of omission would not have caused death unless it had been accompanied by an act
or omission of the person killed or of other persons.
DECEASED UNDERGOES TREATMENT WHICH CAUSES HIS DEATH.
 When an accused inflicts bodily injury on another person and as a consequence of that injury
the injured person undergoes a surgery or treatment which causes his death.
 Consider the case of Rex v Mwagambo s/o Gishodi.
DECEASED FAILS TO GET PROPER MEDICAL ATTENTION
 The accused inflicts injury on another which would not have caused death if the injured person
had submitted to proper medical or surgical treatment or had proper precautions as to his mode
of living.
 In the case of Tindira s/o Chiru and another v Rex.
 ACT OF ACCUSED FORCES DECEASED TO TAKE EVASIVE ACTION WHICH
RESULTS IN HIS DEATH
 He by actual or threatened violence causes such other person to perform an act which causes
the death of such person,
 Such an act being a means of avoiding such violence which in the circumstances appears
natural to the person whose death is so caused.
 Act of the accused accompanied by that of the deceased or of other persons
 Where A causes immediate or sole death of C and B causes injuries accelerating that death
then they are both liable.
 Penal code 213(e) provides that a person is deemed to have caused the death of another person
although his act is not the immediate or the sole cause of death:
• (e) if his act or omission would not have caused death unless it had been accompanied
by an act or omission of the person killed or of other persons.
 In Tindire s/o Chiru and another v Rex, two drunk men, carrying bamboo sticks intervened
in a quarrel over a woman. The deceased comes to the scene and is hit on the head by the
second appellant, causing hemorrhage. The first appellant then hits the deceased again causing
a fracture and brain hemorrhage.
 Doctor’s opinion
• The second blow did in fact cause the death, whereas the first blow would have been
fatal if left untreated, and also accelerated his death.
 It was held that the penal code of Tanzania that is similar to that of Kenya 113(e) where the
injuries inflicted would have caused death ,it does not matter that injuries inflicted by the other
persons or the deceased acts may have accelerated the death.
• The second’s appellant conviction of murder was quashed and substituted with
manslaughter.
Group assault
 Where assault by several persons is concerned, resulting in death. Individual injuries inflicted
are not evaluated.
• Rex v Tabulayenka s/o Kirya and three others. Here a man is assaulted by a group of
thieves that resulted to his death, all charged with murder.
Uncertainty
 When the cause of death is unclear, the accused is given the benefit of the doubt and is either
acquitted or convicted of a lesser charge.
 In Nyamhanga v Republic, an appellant caused grievous harm to the victim, who then got a
tetanus infection and died. The court was not convinced the cause of death was the injury. His
sentence was reduced to grievous harm.
Causation and circumstantial evidence

 Where there is no direct evidence linking the accused to the murder circumstantial evidence
can be a basis of conviction.
 However it must exclude any other reasonable hypothesis than that of guilt.
 The chain of causation must be constant leading to a particular conviction.
 In the case of Ndunguri v republic the appellant was the last person seen with the deceased,
who was later found in the appellants latrine . He could not explain how they parted with the
deceased leaving no other possible explanation for her death.
• This prompted the court to convict on circumstantial evidence.
The Mens Rea
Malice aforethought
 Mens rea in criminal law is concerned with the state of mind of the defendant.
 Where Mens rea is not required the offence is one of strict liability.
 Malice aforethought Man-endangering state of mind conceived by the accused.
 Establishment of Malice aforethought
 Two ways;
1. Proved facts on the actus reus
2. Statement from the accused admitting the offence.
 In Joseph Cheboi v Republic, the accused was convicted for the death of his girlfriend, on the
basis that he was the last person seen with her near a river quarrelling. On appeal it was
established the prosecution had not established the malice aforethought.
• The conviction was quashed and replaced with one of manslaughter.
An intention to Cause Death of Another: Direct intention to kill/ Express malice
 This is the direct intention to kill and is covered in section 206 (a) of the penal code
 Malice aforethought shall be deemed to be established by evidence proving any one or more
of the following circumstances:
 An intention to cause the death of or to do grievous harm to any person, whether that
person is the person actually killed or not;
 The conscious intent to cause death or great bodily harm to another person before a person co
mmits the crime.
 Such malice is a required element to prove first degree murder.
 Where intention is proven it doesn’t matter if the person killed is the one intended or another
person.
 So that where a person intends to kill another but ends up killing the person’s servant, they (the
accused) are still guilty of murder.
 This is referred to as transferred malice as the malice is transferred from the person intended
to be killed to the person who is actually killed.
 Such that in the hypothetical setting where one intending to kill another gives them a poisoned
cup of tea, however the person intended does not drink it but gives it to another who dies as a
consequence; that would still be a case of murder.
 It was held in Paulo s/o Mabula v R (1953) that it would be murder where a person attempting
to commit suicide kills another person accidentally.
An Intention to Cause Grievous Harm to Another

Grievous Harm (section 4)
 Grievous harm is defined any harm which amounts to a maim or dangerous harm, or seriously
or permanently injures health, or which is likely so to injure health, or which extends to
permanent disfigurement, or to any permanent or serious injury to any external or internal
organ, membrane or sense;
• Harm means any bodily hurt, disease or disorder whether permanent or temporary;
 There is no requirement that the killer intended the death of the victim.
 The killer may intend to cause considerable harm or injury and may be convicted of murder if
death occurs, even without intention to cause death.
 To secure conviction, it is important to prove that there was an intention to cause grievous
harm.
 Rex v Gwangire s/o Sinyangwire (1935)
 In R v Sharmpal Singh s/o Pritam Singh, Sharmpal Singh s/o Pritam Singh, the evidence fell
short of proving degree of force used, this, together with the complete lack if motive created a
real doubt as to whether the accused intended to cause grievous harm or knew he was causing
grievous harm.
• His sentence was reduced to manslaughter.
Knowledge that the act or omission will cause death

 Section 206(b) of the penal code imports the element of recklessness to malice aforethought.
 This is the case of a person of a person performing an act or omission in the knowledge that
death is a likely result.
 Liability for murder attaches whether there is a high degree of probability that death will result
from the act or omission committed by the accused.
 In Rex v Tirigurwa Bin Byantimba, a man had set fire on a house with the result that the
deceased was burnt to death. Evidence showed that the appellant had knowledge that the
deceased was sleeping in the house at the material time
• It was held that if someone sets fire to a house knowing or having reasonable grounds
for believing that a person is asleep inside, he must be held to have burnt it with malice
aforethought.
• Thus he was convicted of murder and an appeal against the conviction was dismissed.
 In Isa Mukabya v R, the appellant had been charged with the murder of a location chief while
resisting arrest, by fatally stabbing him with a knife. On appeal it was held that there was
malice aforethought on the part of the appellant on the basis that the appellant had knowledge
as a reasonable man that by stabbing the deceased in the way he did, he would probably cause
harm.
 In the case of Republic v Ndalamia and two others, the court held that there was sufficient
proof of malice aforethought as defined in section 206(b) of the penal code where the accused
persons beat the deceased violently and persistently and when they were persuaded to stop they
could not listen. This resulted in the deceased death.
 The knowledge element is subjective.
 The accused must him/herself have known that there was a likelihood of death being caused.
 It is not a question of what a reasonable person in the position of the accused would have
known but what the accused himself knew.
 In the case of Rex v Palamba s/o Fundikila, the accused conducted a trial by ordeal of four of
his relatives after suspecting them of causing the death of his eleven children through
witchcraft.
• He forced them to take a concoction of a substance called mwavi .The local belief was
that an innocent person would survive the ordeal.
• The accused’s mother and elder wife died but his younger wife and daughter survived.
He was convicted of murder.
• On appeal the conviction was quashed, court held that there was no evidence the
concoction was poisonous.
Intent to Commit a Felony

 Under Section 206(c) of the Penal Code, malice aforethought is deemed to exist where the
accused acts with intent to commit a felony.
 This amounts as constructive malice.
 In Petero Sentali s/o Lemandwa v Reginam, the deceased was heard crying out, ‘they are
killing me'. She was later found dead on the floor of her house. The door was broken and the
house was in disorder.
• The appellant’s hat was found in the house. When the appellant was arrested a day later,
he was found with a sack containing clothing stolen from the deceased house.
• The trial court inferred that the appellant had entered the deceased's house with intent
to steal and that the deceased died in consequence of the violence visited on her by the
appellant.
• The court of appeal took the view that malice aforethought would be established if
death is caused by any unlawful act or omission done in furtherance of an intention to
commit any felony.
 In Kimno arap Kitruji v Rex it was held that there was no authority in English law for holding
that any felonious act done as an end itself and without any intention to cause death or grievous
harm imports of necessity malice aforethought.
• It was stated that what should be considered is whether the felony would likely or
unlikely to cause death and that a man is liable only for the natural or probable
consequences of his tortuous act.
Intention to facilitate the escape from custody of a person who has committed a felony
 Section 206 (d)of the penal code covers the situation where a killing is done in the process of
facilitating the escape from custody of a person who has committed a felony.
 Death caused whether by negligence or accident would amount to murder if it is caused in an
effort to facilitate the escape of a criminal.
 Example where a bystander is killed as a person assisting an offender to escape quickly
reverses or drives of a getaway car.
 In Rex v Karioki wa Njagga a proclaimed offender killed a private person who had gone to
arrest him. The court took the position that violence inflicted in effecting an arrest lawfully
made implies malice aforethought and the death resulting justifies conviction for murder
PERSONS FOR MURDER PURPOSES

 These charges include a child.
 Section 214 of the penal code provides that a child is a person for the purpose of being killed,
when it has completely proceeded in the living state from its mother.
 Republic v Nyamu, the court found that, by virtue of section 214, the accused were not guilty
of murder as for a child to become a person capable of being murdered, it must have completely
proceeded in a living state from the body of the mother. It was found that this ingredient was
not present in that case. The fetuses were not capable of being killed, and therefore there was
no murder.
DEFENSES AND EXTENUATING CIRCUMSTANCES

 Where extenuating circumstances exist and are present at the time of the crime, the accused
can be excused or the offense reduced to manslaughter.
 These circumstances include: Immaturity, intoxication or provocation. Regret on the part of
the killer is one of the guides for determining mitigation.
 Another consideration is between a person who kills intentionally and another who seeks to
only inflict injury. Both are capable of murder. The absence of premeditation on the part of the
accused reduces the blameworthiness.
 Mistake of fact , defense of person or property insanity and belief of witchcraft are other
considerations.
 The court may also convict a person charged with murder of a minor offense although not
charged with it.
 Robert Ndecho and another v Rex:it was held that the conviction of the minor offense must
be an offense which is of cognate character, of the same species or genus with murder. the
court cautioned though that when exercising power under section 179 of the criminal
procedure code. most warily before convicting the person charged with any alternative offense,
although cognate, other than manslaughter.
PENALTY FOR MURDER

 The punishment for murder is mandatory death as per section 204 of the penal code.
BURDEN OF PROOF
 Rests on the prosecution. it was stated in Manyara s/o Malakoni v Reginam that the onus of
proof in murder and manslaughter cases is always upon the persecution
JURISDICTION OVER MURDER

 Murder is triable in the High court , subordinate courts have no jurisdiction at all. This is
because the offense is complex and technical and its penalty stiff.
CONVICTIONS OF RELATED OFFENCES

 A person charged with murder may, where the evidence falls short of establishing murder, be
convicted, by virtue of 179 of the criminal procedure code, of another offense disclosed by the
evidence so long as that other offense is minor and cognate to murder.
 Gachunge v Republic the appellant was convicted of causing grievous harm upon a charge of
murder , on the finding that the medical evidence was insufficient to support a conviction of
murder.
OFFENCES CONNECTED TO MURDER.
1. Infanticide.
 This is mothers killing their infants under the age of twelve months. This is defined in section
210 of penal code.
 However, it can be treated as manslaughter if the mother killed her child when her balance of
mind is disturbed by not have recovered fully from the effect of giving birth or effects of
lactation.
 In this case the burden of proof is for the mother to show that the balance of her mind was
affected at the time of killing.
 The maximum penalty is life imprisonment.
2. THREATS TO KILL.
 This where without lawful excuse one utters, or directly or indirectly causes another to receive
a threat, whether in writing or not to kill a person.
 It is found in section 225 of P.C. This offence attracts a penalty of imprisonment up to ten
years.
3. SUICIDE AND RELATED OFFENCES.

 The dead cannot be prosecuted.
 So the penal Code does not punish suicide.
 The law focuses on attempted murder. Section 225 and 226 of P.C.
A. ATTEMPTED MURDER
• This is a misdemeanors offence, the penalty is two years imprisonment or a fine or even
both, however those people that survive are rarely punished. this is because the life of a
person belong to him or her and he or she can destroy it. Secondly those people mostly
surfer from psychological problems. These people require sympathy and treatment not
punishment.
B. AIDING ATTEMPTED SUICIDE.

 The penalty for this offence is a maximum of life imprisonment.
 this could be availing a weapon to a person seeking to kill himself or herself or giving them
advice on the BEST METHODE to kill themselves.
 In the case of Rex v Kimonirr and 5 others the accused where convicted for helping their
relative accused of practicing witchcraft to hang himself.
4. CONCEALING BIRTH.
 This offence is a misdemeanors and it applies where the child dies before or after its birth, the
penal code 227.
 The offence targets the disposal of unwanted new-born children in secret.
 If a woman was pregnant, delivered and shortly does not have the possession of the child can
be charged and a baby is found dead.
5. KILLING AN UNBORN CHILD.

 This is where a mother expected to give birth prevents the child from being alive by an act or
omission. The offence lies somewhere between abortion and homicide.
 For abortion it is not necessary to prove that the child would have been born alive, but for child
destruction it must be proven by medical evidence that the child was capable of being born
alive.
 The two offences however, overlap to some extent and the person charged for child destruction
may be convicted for abortion.
6. ATTEMPTED MURDER
 The offense is committed when a person unlawfully to cause the death of another , or with
intent unlawfully to cause the death of another does any at or omits to do any act, which there
is a duty to do, which act or omission is of such a nature as to be likely to endanger human life.
in simple terms, it is in the doing of an act which endangers the life of another with an intent
to kill or cause the death.
ACTUS REUS ELEMENTS

 This an act or omission which endangers the life of another.
 Rex v Garu Ayub. The accused had armed himself with a rifle with the intent of killing a
specific person. He went to where he was with a loaded rifle, but he was restrained by another
person as the accused was swinging the rifle round so as to point it in the targeted victims
direction and was raising the gun to his shoulder and was about to lace his fingers on the trigger.
 It was held that his acts did not constitute an attempt to murder as the actions were interrupted
when they still amounted to preparations only. they accused was prosecuted for other offences.
MENS REA ELEMENTS
INTENTION TO KILL
 Rex v Gwempazi. stated that it must be shown that the accused has a positive intention to killer
cause death . Position found reinforcement.
 Hamisi s/o Tambi
POSITIVE PROOF OF AN INTENTION TO KILL

 The court should only convict a suspect of attempted murder where there is positive proof of
an intention to kill.
 In the case of Cheruiyot v Republic, it was stated that it is not sufficient to prove that it would
have been a case of murder if death has ensued , or that the accused had acted with indifference
as to what was likely to be the fate of the victim or that he acted in a manner which was so rash
as to endanger the life of another person or as to be likely to cause harm to him , and that an
intent merely to cause grievous harm is not sufficient
INTENTION TO KILL INFERRED PROVED FACTS

 Evidence supporting the charge.
 Ahmed Mohamed v Reginam:
 it was held that it is the duty of the court to determine whether , on the facts adduced, it could
reasonably infer either that the accused intended to kill or that he at least knew that what he
was doing was so eminently dangerous that he must in all probability cause death or such
bodily injury as was likely to cause death.
CONVICTION OF RELATED OFFENSES

 Where the mens rea for attempted murder is not established, but a different offense is proved,
the court may convict the accused by virtue of section 19 of the criminal procedure code.
 Rex v Roy Hull Home
• It was held that, by dint of section 179(2) of Kenya criminal procedure code. a person
charged with attempted murder may be convicted of a lesser offense such as assault
occasioning actual bodily harm. the appellant had been charged with attempted murder,
but convinced of assault occasioning actual bodily harm .
PROVOCATION OF RELATED OFFENSES

 It was held in Rex v Luseru Wandera : that the existence of provocation will not operate to
bar a conviction for murder provided that it is proved that the accused had a positive intent to
cause death. however , provocation can be urged in mitigation of sentence.
PENALTY FOR ATTEMPTED MURDER

 The prescribed penalty for attempted murder is life imprisonment , by virtue of sections 220
and 221 of the penal code .
 Cheruiyot v Republic: Trial court imposed a sentence of seven years imprisonment , but the
appellant court reduced it to four years after taking into account the fact that the complainant
had not suffered any personal injuries
MANSLAUGHTER
Manslaughter is defined in section 202 and 205 of the penal code. It is unlawful killing without
malice aforethought. Its principal elements are: (a)the causing of the death of another person (b)
By unlawful act or omission, and ( c)death within a year and a day. The distinction between it and
murder lies in the absences of malice aforethought.
 This means that the actus reus elements for the same as those required for murder, but the
mens rea falls short of malice aforethought. In Wycliffe olouch odhiambo v republic there
were evidence that the appellant did indeed stabbed the deceased and caused his death but
there was doubt as to whether he had malice aforethought .His conviction of murder was
substituted with manslaughter
 (2)The actus reus

(a)unlawful act
 The actus reus required for the offence is an unlawful act or omission causing the death of
another person. In rex v mutono s/o luigo and other. it was held that to convict to
manslaughter it is only necessary to find that the act of the accused was unlawful one
 (b)A dangerous act

 The actus reus required for the offences is an unlawful act or omission causing the death
of another person. The unlawful act must be one which is dangerous and likely to cause
injury to another. It is not necessary that the accused should have known that the act would
be likely to cause such injury, what is important is that a reasonable person considering
such act would recognize the danger. The test whether an act is a dangerous is an objective
one.
 (c)Minor assault
 A minor assault, though an unlawful act, cannot be a basis for a charge of manslaughter
as the same is not properly dangerous and likely to cause injury. The accused should not
be convicted of manslaughter where death results from a minor assault, but of a lesser
offence such as assault.
 (d)Proof and cause of death
 Since the offence is that causing death they must be proof of death. In amir began and
other v reginam, the appellants were convicted of manslaughter of a girl whose death they
caused by beating. There was ample evidence of the beating, but no specific medical
examination of the body was made to exclude the possibility that she had died of other
possible causes. The court substituted to assault
 The Mens Rea

a) Malice aforethought mitigated by extenuating circumstances.
 Mens Rea for manslaughter falls short of malice of aforethought.
 It could be on account of a variety of thoughts including Presence of mitigating provocation

or Extenuating circumstances.
 Malice aforethought is mitigated by the elements of provocation, defence of defence,

intoxication, mistake of fact and negligence among others.
 …
 A person acting under the influence of such extenuating circumstances is said to have a
less guilty or morally blameworthy mind, and should be convicted of manslaughter rather
than murder.
 The principles governing provocation, excessive defence of a person or property, mistake

of a fact and intoxication were discussed earlier, showing the extent to which the presence
of these factors influence the reduction of the offence of murder to that of manslaughter.
 Cases.
 In Rex v Zakayo (1947), it was held that in a trial for murder where a defence is put forward
and rejected, the court still has a duty to consider the possibility of manslaughter if there is
evidence of support it.
 In Rex v Mbologa, it was held that proof that an accused person had lied in his defence to
charges of murder does not absolve the court from ascertaining from the whole evidence
whether the crime is murder of manslaughter.
 b)Intention to commit a Dangerous Act.
 Elements of intention is sufficient in cases where there is intent to do an act which is

dangerous or which endangers life.
 It was held in Director of Public Prosecution v Newbury and another (1976) that a person
is guilty of manslaughter if it proved that he intentionally did an act which was unlawful
and dangerous and that act inadvertently caused death.
 c) Knowledge.
 An element of Mens Rea is also observed and was considered in Rex v Petro Mangongo.
It was stated that in Rex v Mgambo bin Kwenyema (1934), that if a person feloniously
fires another in such circumstances as would make the killing of that other person
manslaughter , but by accident he hits a third person whom he never intended to hit at all,
he is guilty of manslaughter.
 He would be deemed to have known that their act was likely to cause dangerous injury or
even death to someone.
 RECKLESSNESS
 For other cases, the relevant elements will be recklessness and negligence, where death
results from such conduct. These two concepts are distinct, although the courts sometimes
treats them as amounting to the same thing.
 Recklessness is usually deemed present where the accused has acted in the awareness of
the existence of a risk but proceeds nonetheless. A person who acts recklessly is said to be
indifferent as to the results of the action, in the sense that he does not care if harm ensues
from what he does
 In the case of, Gideon Miano v Republic, the appellant, a policeman, killed the deceased,
a suspect by shooting at the back of the deceased as he sought to flee. The officer did not
give, chase of any warning but simply cocked his gun, and aimed and pulled the trigger.
 In the opinion of the court, this amounted to reckless behaviour on the officers part and he
was accordingly guilty of manslaughter.
 Negligence
 It involves the doing of something with an attitude which shows less than the required
degree of care. Section (202) (2) of the Penal Code makes the elements of negligence a
mens rea requirement in relation to duties concerned with preservation of life or health.
 It could appear in such cases that the moral quality of a omission amounting to culpable
negligence is the determining factor.
 A gross failure to discharge a duty which a reasonable man would consider a very serious
failing is likely to be considered a culpable negligence, whereas a momentary in attention,
which a reasonable man is capable of, might not be considered.
 In Rex v Danieri Bisamuli s/o kite, it was held that the ingredients of manslaughter by
negligence are duty of care on the part of the accused , failure to discharge that duty, death
is caused by default on the part of the accused and the accused’s negligence goes beyond
a mere matter of compensation and shows such disregard for the life and safety of others
as to amount to a crime against the state and therefore deserving of punishment.
 Suicide Pacts
 A person who kills another, in pursuance of a suicide pact commits manslaughter. A suicide
pact is an agreement between persons that they should all die at the hands of one member,
who himself shall die in the execution of the pact.
 The objective of all involved is the deaths of all of them. This is dealt with in Section 209
of the Penal Code. The rationale is that the accused must have had a settled intention of
dying as a result of entering into the pact, and the accused would in such circumstances be
considered to be a lesser degree of moral guilt, compared with a person guilty of murder.
 The Mens Rea required for the offence is the settled intention to die in that manner.
 PENALTY FOR MANSLAUGHTER
 The penalty is prescribed in section 202 of the penal code is the maximum of life
imprisonment. The severity of the offence depends on the circumstances of the case. In
Gideon Kenga Maita v Republic Mombasa CACRA NO.35 of 1997(Omolo, Akiwumi and
Lakha JJA), it was stated that in manslaughter cases the court has discretion to assess the
appropriate sentence, and is not bound to award the maximum sentence of life
imprisonment.
 The circumstances that ought to be taken into account include the circumstances under
which the offence was committed, the circumstances of the accused person such as whether
he is a first offender, how long he has been in prison awaiting trail and things of that nature.
 In the matter the appellant did not have a wife and children, and his brother insulted him
saying he was a useless man with no wife and children and that upon his death nobody
would remember him. The brother then kicked the appellant, who lost his cool, ran and got
a knife and stabbed his brother to death. He was sentenced to life imprisonment. On appeal,
the sentence was reduced to five years imprisonment. In Mwacha v republic (1990-1994)
EA 431(Kisanga, Ramadhani and Mnzavas JJA)
 A father, who killed his truant son in the process of disciplining him, was convicted of
manslaughter and sentenced to twenty years imprisonment. The sentence was reduced on
appeal to three years imprisonment on the grounds that it was too severe. The court
considered that the act of chastising a child for playing truant is something that the
appellant's community approved of and that the immediate cause of death was not the
blows inflicted by the appellant, but the injury on the head suffered by the child after a fall.
 In Onvochi Aram v The Republic [1980] KLR 113( Madan, Law and Potter JJA), the
appellant had come to the homestead of the appellant and found the appellant's sisters
celebrating a birth, he was drunk and he asked them why they were rejoicing. He then
attacked the appellant who was thatching a hut. A struggle ensued; the appellant got hold
of a panga and stabbed the deceased with it
 He was sentenced to four years imprisonment. On appeal, the court took into account the
fact that the appellant was young man twenty-five, who had spent fifteen months in
custody at the time of the sentence been started by the deceased, the appellant was unarmed
and he apparently had no intention of having a fight with the deceased. The sentence was
substituted with a sentence ensured his release on the date of judgment.
 BURDEN OF PROOF
 The burden of establishing manslaughter lies with the state; there is no onus on the accused
to prove his innocence. This point was made in Kioko v Republic[1983] KLR 289[1982-
88] 1 KAR 157( Madan, Kneller and Hancox JJA), where the trial court had remarked that
certain acts and missions were inconsistent with his innocence, and on appeal it was said
that that was wrong as it had the effect of shifting the burden of proof to the accused.
Non-Fatal Offences Against the Person
Wounding
It is defined as an injury taking the form of an incision or puncture which divides or pierces any
exterior membrane of the body. This means that the skin must be pierced or punctured. This would
be the ideal charge for cases where a person has inflicted knife wounds on another or has caused
lacerations or tearing of the skin.
 It is defined in section 237 of the penal code as a misdemeanor. In Rahim Rajan v R [1958]
EA 448 ( Sir Aulley Mckisack CJ), the court considered the definition of ‘ wounding’ and
held that although the medical evidence was not clear on the nature of the injury sustained
by the complainant, there was ample evidence to sustain a holding that there was a wound
as the whole skin had been punctured or divided
Grievous Harm
 This is an assault causing grievous harm to another in terms endangering life and health. It
applies in cases of really serious injury or harm.
 It is a felony punishable by maximum penalty of life imprisonment. The offence is defined

in section 234 of the penal code
 THE ACTUS REUS ELEMENT
I. The Actus And The Injury
 The grievous act could be through harm could be through maiming, disfiguring, disabling
or other equivalent act.
 The terms ‘grievous harm’, ‘harm’ and ‘maim’ are defined in section 4of the penal code
to refer to really serious injury which is permanent or close to permanent
interfere with health or comfort, and the answer to the question may depend on the nature
of the injury and the circumstances of the case.
interfere with health or comfort, and the answer to the question may depend on the nature
of the injury and the circumstances of the case
 In the opinion of the court in that matter the knocking out of a tooth with a fist was not by
itself a maim or dangerous harm or harm which causes permanent or serious injury to health
nor amounting to permanent disfigurement.
 In REX V KIBARA (1915-1916) 6 EALR 133 (Hamilton cj), it was held that hurt cannot
be held to be grievous, when it is only a flesh wound where there is evidence that the man
would recover and that his life is not endangered
Duty of Court to Determine Whether Injury is Grievous

 In Regina v Ali s/o Fakili, it was held that is not for a medical officer of health to decide
whether an injury is grievous harm or not. He might express his opinion to the police,
through the police form, that he considers an injury to be grievous, but it is the duty of the
court, on the evidence before it to decide whether it amounts to grievous harm as defined
in the penal code or not.
 It was further held that a broken arm is not necessarily grievous harm. It is only grievous
harm if it results in the destruction or permanently disabling of the limb or endangers life
or seriously or permanently injures the health of the person injured or causes any permanent
or serious injury or disfigurement
Injury May be Caused Indirectly

 The injury need not be directly caused by the accused. It suffices that he creates the
situation which leads to the hurt. In Republic v Msungwe (1968)EA 203 (Biron J), the
accused assaulted the complainant and then chased him with a knife.
 While running away from the accused the complainant tried to jump over a ditch but fell
and broke his leg. The accused did not attack him while he was lying in the ditch, but left
him there lying semi-conscious. The complainant was to be later hospitalized for five
months and his leg amputated. The accused was convicted of grievous harm, and an appeal
against the conviction quashed
ASSAULT
 Intentional application of force to the person of another directly or indirectly in such a way as
to create a reasonable belief in the mind of the other person that force is about to be used
against him or the intentional application of unlawful force against another person.
 Provided for in sections 250 to 253 of penal code.
 Offence is a misdemeanour punishable by a maximum of a year’s imprisonment.
 Mere words do not amount to an assault- Rex v Mbuthia s/o Kaguru
 Rex v Gaturo s/o Njau- appellant approached in anger elders who were hearing an alleged case
of trespass by the appellant’s son. He seized a heavy pointed stick, raised it threateningly like
a spear and demanded to know which was the senior elder so that he might kill him. The elders
retreated in fear. It was held that the appellants conduct amounted to an assault.
 Provocation is not a defence for assault and battery.
AGGRAVATED ASSAULTS
1. Actual bodily harm
 Provided for in section 251 of penal codes.
 Ingredients consist of assaulting the complainant and occasioning actual bodily harm on
him.
 Stephen Shida Ndaa v Republic – a person pleads guilty to a charge under section 251 of
the penal code if he admits assaulting the complainant and causing him actual bodily harm.
2. Assaults on person protecting a wreck

 Section 252 of the penal code criminalises assaults on persons protecting wrecks.
 Envisages magistrates , officers and other persons lawfully authorised in execution of their
duties or concerning the preservation of any vessel.
3. Assaulting, Resisting and obstructing a police officer.
a) Assaulting a police officer
I. Officer must be on duty
 It is a serious offence under section 253(a) of the penal code to assault a police officer who
is acting in execution of duty and it is also an offence under section 253(b) of the penal
code to resist a lawful arrest.
 Offence will not apply to an assault on an off-duty officer; such an assault would fall under
a common assault.
 Rex v Wakaba s/o Waithaka- appellant and others had assaulted police officers who were
attempting to arrest them on the order of a chief for illegal possession of intoxicating liquor.
There was no evidence that there was any order of the chief prohibiting such liquor within
his area of jurisdiction. It was held that without such evidence the police officers were not
acting in the due execution of their duty.
 The persons were therefore entitled to resist their assault however they were not entitled t
use more force than was necessary in the circumstances.
ii. Knowledge that officer is on duty irrelevant
 Where policemen are assaulted in the execution of their duty, it is immaterial whether or
not the accused knew that they were acting in execution of their duty.
 Section 253(b)
 Waera s/o Madoya and others v Republic defence can be raised if the accused had a reason
to honestly believe that the person assaulted was not a policeman.
B. Obstructing a police officer

 Section 253(b) – it is an offence to obstruct a police officer in the due execution of his
duties.
 Section 108 of the Kenya Defence Force also makes it an offence to obstruct a police
officer.
i. The officer must be executing duty.
 Offence is established only if the officer was in the process of executing the duties detailed
to him.
 Marijani v Uganda- a police officer was instructed to go to the market specifically to look
out for unlicensed hawkers. He came across some hawkers and told them to sell their wares
in the market instead of hawking around. He identified himself to prove that he was an
officer on duty.
 The hawkers surrounded him and assaulted him.
 They were convicted for assaulting a police officer in the execution of his duties.
C. Resisting arrest.
 Section 253(b) makes it an offence to resist an arrest by a police officer.
 The offence is not established, where the act complained of is by a person who is already
in lawful custody
 Lui v Republic- appellant refused to leave the dock when ordered to do so by court. He
resisted removal and created a disturbance which interrupted court business. He was
convicted, among other things, resisting arrest.
 On appeal, the conviction relating to resisting arrest was quashed.
 Paulo s/o Busondo and another v Reginam- where an accused person is charged with acts
intended to prevent arrest he may be convicted of the offence of wilfully obstructing a
police officer in execution of his duty.
BATTERY
 Committed where some force is applied on the complainant.
 Associated with physical striking, but a minimal application of force is usually sufficient.
 The application of force may be indirect , meaning that there need not be any physical
contact with the assailant.
Offences Against Morality

• Offences against morality
• SEXUAL OFFENCES
• Group 6
• The offences in this class are defined under the Sexual Offences Act, Act No.3 of 2006
• They were originally defined in chapter XV of the penal code which repealed after the
Sexual Offences Act was passed.
• The Sexual Offences act was introduced due to certain factors:
• The definitions in the penal code was outdated.
• Gender balance
• Inadequacy of the sentences
• Main offences include:
• Rape
• Defilement
• Incest
• Sexual assault
• Offences against exploitation of children
• Offences connected with prostitution
• Rape
• Rape is having sexual connection with a person without the person`s consent.
• In Rex V Lachman Singh S/O Jowala Singh, it was stated that the offence of rape is so
serious that it is punished by either death or life imprisonment.
• The principle elements of rape are :
• Penetration
• Lack of consent
• Nakholi V Republic held that both elements must be arrived at by the prosecution before
a conviction of rape can be arrived at.
• N/B
• Under the Penal code, the offence of rape could only be committed against females.
• Under the Sexual Offences Act, the offence can be committed by a person of either gender
to a person of either gender.
• In Eria Ngobi v Reginam it was advised that where the victim is a child the prosecution
ought to charge with defilement rather than rape.
• The Actus Reus
• The actus reus element required for the offence is the penetration of the victim`s genitalia
with the offenders organs.
• Penetration refers to the partial or complete insertion of the genital organs of a person into
the genitalia organs of another person.
• It becomes an offence where penetration occurs without consent.

• It was held in Mwangi v Republic that an essential fact to the proof of the offence of rape
is the proof of penetration which establishes that sexual intercourse has taken place.
• Presence of spermatozoa in the vagina is not conclusive proof nor is the absence of it proof
on the contrary.in Andrew Apiyo Dunga & others. Was held that the offence of rape is
complete once there is penetration.there is no need to proof that the spermatozoa found
inside did not match the accused.
• The Mens Rea
Intention
• The mens rea required is the intention to have unlawful penetration without consent or with
consent obtained by force or fraud or pretences.
• The intention to proceed with penetration despite lack of consent must be established.
• Consent must be absent at the time of intercourse.
• In R v Williams, a choirmaster had intercourse with a pupil on the pretence that the sexual
act would improve her singing .This act amounted to rape because consent in the
circumstances had been obtained by fraud. It also applies to an act with someone who
cannot appreciate the nature of the act, such as idiots or imbeciles or person who is asleep.
• The mens rea for rape is intention, and not the state of mind . The relevant mental element
which must be proved by the prosecution is the intention to have penetration without
consent, or not caring whether the person is consenting or not.
Lack of Consent
• In Achoki V Republic the definition of rape makes it clear beyond peradventure that is the
lack of consent on the part of the victim that is at the core of the crime of rape. Indeed, it
is so vital that even if there is an apparent consent obtained by false or personation, a charge
of rape would still lie against the lavisher.where there is consent there is no rape.
Child Victims
• In Nakholi V Republic, it was held that a child may be of such tender age that the mere
proof of age may be sufficient to establish the lack of consent on the part of the child,as
the child would on account of their age be unable to understand what was happening and
would not be able to consent as they would not know what they were consenting to.
• The age of the child would be evidence that the act was without consent and the court has
to find this as a fact before convicting of rape.
• In this case, the accused is charged with defilement since consent is irrelevant.
The Charge
• The charge of rape must specifically allege that the penetration was without the consent of
the complaint.in Stephen Oduor v Republic Kisumu the words without her consent
constitute an essential ingredient to the charge of rape.
• In the case of Murunga V Republic, it was held that there can be no joint charge on rape
• Spousal Rape
• At common law, a husband cannot rape his wife as was held in Reg V Mayers.
• This is based upon the presumption that upon marriage, the man is given a standing consent
to intercourse by his wife.
• English courts have departed from this position.
• Common law can however not apply in kenya because Kenyan criminal law is governed
by statute .
• The defination of rape under section 3 of the sexual offences act is wide enough to cover
the rape of a wife by her husband and vice versa.
• Corroboration
• In the case of Katumba v Uganda, the court stated that corroboration is additional
independent evidence which connects the accused with the crime.
The Basis
• In the case of Maina V Republic, it was stated that it is dangerous to convict a person on
the evidence of the victim`s complaint alone. This is because of fabrication.
• The corroborating evidence could include:
• Physical resistance from the victim.
• Objection of intercourse first the fear of pregnancy
• Penalty
• The penalty for rape as prescribed in the sexual offences act is a minimum of ten years
imprisonment and a maximum of life imprisonment.
• Attempted Rape
• Created by section 4 of the sexual offences act.
• It is the attempted unlawful and intentional act to cause penetration of the complainant`s
genital organs with the genital organs of the accused without the complainants consent.
• The crown v Said Mshangama identified the elements of attempted rape.
 It must be shown that the accused intended to commit rape.he began to put that intention
into execution. Hence one must prove the intention of the offender.
 It must be proved that the offenders intention was to have sexual connection with the
complainant without his/her consent or by fear or intimindation.
 The penalty for the offence is imprisonment for a minimum of five years and a maximum
of life imprisonment.
• Gang Rape
• Section 10 of the act criminalizes rape.
• Applies to a person who commits rape in the company of others and

• A person who is in company with people who commit the crime although he does not
himself rape or defile the victim. The liability attaches on the principle of common
intention
• Punishment is a minimum of 15 years and a maximum of life imprisonment.
• Sexual Assault
• Was not defined in the penal code.
• It is defined in section 5 of the Sexual Offences Act as:
• The penetration of the genitalia of another with any part of the body of another
person or penetration with an object manipulated by another person.
• Penetration for medical treatment is an exemption
Actus reus is the penetration without consent.
Mens rea is intention to cause penetration
Penalty is imprisonment for not less than 10 years or life imprisonment.
• Indecent Acts
• Defined in section 2 of the act.
• Is an unlawful act which causes contact between any part of the body of a person with the
genital organs, breasts and buttocks of another without penetration.
• Also refers to exposure of any pornograpgic material to a person against his will.
• In Thumi v R it was started that it is not a defence to a charge of indecent assault on a child
to prove that the child consented to that act.
• Defilement
• Defined in section 6 of the act.
• It refers to having sexual connections with a child i.e. a person below 18.
• The offence is committed when a person does an act which casu
• The Actus Reus Elements
• The actus reus for the offence is penetration with a child.in Kibale v Uganda it was held
that in order to prove the commission of the offence of defilement, it has to be established
that there had been penetration of the sex organ of the victim by the sex organ of the
assailant,and that the victim was below the age of 18.
• The slightest penetration constitutes to the offence of defilement as was stated in the case
of Nfutimukiza V Uganda.
• The Mens Rea
• The mens rea of the offence is the intention to cause penetration with a minor with the
knowledge that they are underage.
• It is a defense that the child deceived the accused into believing that he/she was over 18
and the accused reasonably believed that she/he to be over 18.
• This defense is however not available where the accused is related to the child by blood or
affinity.
• Rex v Daniel Abraham Johannes Coetzee the appellant had been convicted of defilement
of a girl of 14years.his defence was that he believed her to have been above the age of 16
years,which at that time was age of consent. On appeal, it was held that the appearance and
other evidence it was improbable that the appellant would have believed her to be above
16.
• Consent
• Consent is not a factor in defilement, and consent is not available as a defence to an accused
who alleges that the minor consented to the sexual act.
• Penalty
• The penalty for defilement depends on the age of the victim.

• Below age 11, life imprisonment
• Btwn 12 &15, imprisonment not less than 20 years
• Btwn 16 & 18, imprisonment not less than 15 years
• Attempted Defilement
• Defined in section 9(1) of the sexual offences act.
• Committed by one who attempts penetration with a minor.
• Penalty for attempted defilement is a jail term not less than 10 years regardless of the age
of the minor.
• Other sexual offences with respect to children
• Indecent acts with children : section 11 of the act
• Promotion of sexual offences with a child: section 12
• Child trafficking: section 13
• Child sex tourism: section 14
• Child prostitution: section15
• Child pornography: section 16
• Prostitution
• Is the practice of a person offering their body for indiscriminate or promiscuous sexual
practices for hire or payment.
• Sexual offences act does not outlaw prostitution hence prostitution is per se not a crime.
• However the business or profession of prostitution is surrounded by criminal prohibition
• S.15, outlaws child prostitution while s.17 makes it an offence for a person to exploit
another for prostitution purposes.s.18 criminalises trafficking for sexual exploitation.
s.19 seeks to protect a person with disabilities from exploitation for prostitution purposes by
criminalizing acts tending to the prostitution of persons with mental disabilities.
s.156 0f p.c criminalises the keeping or management of brothels
• Incest
• Defined under s.20,21 and 22 of the SOA.
• It prohibits sexual relations with blood relatives within certain prohibited degrees of
relationship.
• Under S. 20 a male person should not have sexual intercourse with his
daughter,granddaughter,sister,sister,mother,niece,aunt or grandmother.
Under S.21 it is an offence for a female to have sexual relations with her
son,father,grandson,grandfather,brother, nephew or uncle.
S.22 states that such relatives include half-siblings, half-parents and adoptive siblings and the
uncles or aunts shoul;d be of the first degree.
• It is no an offence for cousins to have a sexual offence.
• Rationale; it is considered morally wrong to have sexual relations within a family as this is
not considered decent.
• It also protects minors within families from sexual exploitation.
• ACTUS REUS & MENS REA
• Actus reus is the penetration with such relatives with thae knowledge that the offender is
related to them.
• Mens rea is intention and knowledge.
The intention is to have penetration with such relatives with the knowledge of the relation existing
between them.
Consent is irrelevant.
Penalty is imprisonment for a term not less than ten years.
If the victim is a female under the age of eighteen,the penalty is life imprisonment and the consenr
of the victim will not be a factor that a court will consider in sentence.
Attempt incest penalty is imprisonment for aterm less than ten years.
• Court may essential orders for the protection of the victim especially if it’s a child victim.
example;If the victim is a female child and the offender is the father or guardian of the child, he
will be divested of all authority over the victim with respect to guardianship
• In Barugahaya v Uganda, it was held that the offence of incest is commited even if the
relationship is not traced through lawful wedlock. In the matter, the appellant had been
convicted of incest with his daughter whom she had with a woman to whom he was not
married.
• SEXUAL HARASSMENT AND EXPLOITATION
Created by S.23 of the SOF and it seeks to protect employees from sexual exploitation at their
place of work by their superiors.
The offence is defined as the persistent making of unwelcome sexual advances or requests by a
person in a position of authority or holding public office.
• Mens rea- required is the knowledge that the advances or requests are unwelcome.
• The offence is established where it is proved that the rejection by the person the target
person of the advances is intended to be as a basis for considering the targeted person for
employment or for the making of a decision relevant to the career of the person.
• The other consideration is whether the advances or requests have the effect of interfering
with the work or educational performance of the victim.
• Penalty-imprisonment for a period of not less than three years or fine or

both.(misdeamenour)
• S.24(3) protects patients in hospitals

• S.24(4) protects the relationship between teachers and students/pupils
• One should be charged under S.24. If it does not amount to murder or rape. If it does one
should be charged with the more serious offence.
• No sexual relationship under S.24 exists between the parties if it existed before the position
of authority arose.
• The burden of proving that a sexual relationship existed prior to the act is on the accused.
• TRANSMISSION OF HIV & STDS
• It is an offence under S.26 o SOA for a person to infect another with HIV or any sexually
transmitted disease.
• The Act causing the offence is either the doing of anything or permiting the doing of
anything that causes the infection, meaning the offence does not have to be through sexual
intercourse.
• Mens rea.is knowledge and intention i.e intentionally doing something with the knowledge
that the act could lead to the other person getting infected with Hiv or sexually transmitted
disease.
• The fact that the accused person was married to the accused is immaterial
• Penalty of imprisonment for a term of not less than fifteen years and up to life.
• Its irrelevant for the accused to be unaware of his infection.
• OTHER RELATED OFFENCES
• UNNATURAL OFFENCES-
• Unnatural sexual conduct is targeted by S.162 of the Penal Code, which creates severtal
offences criminalizing unnatural acts.
• Under S.162(a) it is an offence to have carnal knowledge of any person against the order
of nature. Where the offence occurred without consent then one could be charged with
offences under SOA such as rape,defilement
• Wwhere the unnatural offence occurs with consent then one is guilty under S.162(c) of the
Penal Code.
• Carnal knowledge of an animal (bestiality) is an offence under 162(b).
• It is a felony and attracts a penalty of imprisonment for up to fourteen years.
• ABORTION
• Its defined as termination of a pregnancy
• Its subject to s.158,159,160 of the Penal Code.
The Mens Rea required is intent to procure a miscarriage. This is a felony attracting 14 years
imprisonment.
• CONSPIRACY TO DEFILE
• S. 157 creates this offence.
The offence is committed by a person who conspires with another to induce another, whether male
or female or boy or girl, by means of false pretence or fraudulent means to permit any person to
have unlawful carnal knowledge of that other person.
The offence is a felony punished by imprisonment for a term of up to 3years.
Offences Relating to Property

• The offences to Property discussed here include:
• Theft
• Malicious injury to property
 Arson
 Malicious damage
 Aggravated forms of malicious damage.
• Setting fire to crops
• Injuring animals
• Related offences
• THEFT
• Introduction
• Considered to be largest category of crime.
• Covers all acts directed towards property such as theft, vandalism, fraud, breach of trust
etc.
• Theft
• Theft is also known as stealing and is defined in Section 268 of the Penal code.
• It occurs when a person fraudulently and without claim of right takes anything capable
stolen or fraudulently converts to the use of any person other than the general or special
owner anything capable of being stolen.
• Mohinder Lal Gill vs R – Kenyan Penal Code includes theft by conversion as well as theft
by taking or carrying away.
• Section 268(5) of the Penal Code states – There cannot be taking unless the accused has
moved the thing or caused it to move. The thing must be removed from its normal place
and any degree of movement however slight constitutes taking.
• Ownership
• Ownership for purpose of theft is not limited to its legal owner. It’s much wider, it
encompasses a general owner and a specific owner.
• General owner is not defined in the Penal Code, however we can say that the general
owner is the person to whom the thing belongs.
• Special Owner as defined in Section 268(2) of the Penal code is any person who has any
charge on the thing in question or who has the right arising from or dependent on holding
or possession of the thing.
• The owner may be described as any person with the ultimate right or title to the thing and
the possessor as the person with physical control of the thing .
• The stolen thing must be of economic value.
• Haslett v Republic – Appellant was a government servant who took steps to dispose of
certain spares without following correct procedure. Spares were of little value and in fact
considered rubbish.
• Types of theft
a) Theft by Trick
b) Theft by Intimidation
c) Theft as a result of a Mistake
d) Theft by Finding
• Aggravated theft
a) Stock Theft
i. Under the Penal Code
ii. Under the Stock and Produce Theft Act
iii. Elements of Stock Theft
- possession of stock by accused
- cattle were reasonably suspected to be stolen/ unlawfully obtained

b) Theft of a Motor Vehicle
c) Theft from a Dwelling House
d) Theft from a Vessel or Vehicle or Theft of Goods in Transit
e) Theft from a Public Office
f) Theft from a Person Employed in the Public Service
i. The Elements
- offender is a person employed in the public service
- the thing stolen is either property of the government or came into his possession by
virtue of his/her employment
i. The Employment Factor
ii. Acting in Breach of Duty
iii. Employees of Parastatals
g) Theft by Agent
i. Under the Power of Attorney for its Disposition
ii. Property comes to the Possession of the Thief for Deposit, Application, Payment
or Delivery
iii. The Thief Receives the Property for or on Account of any other Person
h) Theft by a Clerk or Servant
i. Theft from any Locked Room, Vehicle, Box or other Receptacle
• ii. Other Forms of Aggravated Thefts:

Theft of wills(Whether the testator is alive of dead), theft of postal matter, theft by a tenant or
lodger, theft by a previously convicted thief, theft by a director or officer of a company or a
corporation, stealing fishing nets or fishing gear, theft from the person.
• The Actus Reus Elements
• The actus reus required for the offence of theft is:
 Taking
 Conversion
 Possession
• a) Taking
• Taking- Unlawful removal without consent of the possessor.(Not defined in the penal
code)
• Obtaining consent by trick or intimidation or mistake does NOT amount to consent. This
is constructive undertaking.
• A person is only said to have taken the thing if he/she moves it or causes it to move. (Penal
Code 268(5)). This is also referred to as asportation.
• …
• Taking can be viewed as moving a detached thing from where it had occupied or as
completely removing the thing from where it had been attached.
• CASE: Joseph Kariuki V Republic* (The appellant had accosted the complainant at a
junction and confronted her with a rifle. They had forced her out of the car and attempted
to drive off with the car but had failed to do so as the car stalled. Alarm was raised and
help arrived before they accused could take anything from the complainant’s car. It was
held that there was no theft as nothing had been moved but there had been attempted
robbery with violence.)
• Theft provides for the taking of the thing stolen and moving it or causing it to be moved.
See also: Harry Amwayi Etemisi V Republic Kisumu, Mwangi Nyagah V Republic.
• It should be noted that the offence of stealing is the deprivation of possession and not of
ownership. And stealing occurs when one wrongly removes the goods with intention more
often than not to deprive the owner of it. See Mapunda V Republic .
• b) Converting
• Also not defined in the Penal Code.
• It occurs when the accused is in lawful possession of the thing but he/ she usurps the rights
of the owner of the property.
• It MUST be fraudulent. If not, the offence may be conversion but not amounting to theft.
It is a Civil wrong(Law of Torts).
• Conversion also applies when a finder of lost property, knowing that the owner can be
traced, decides to keep the property for himself/ herself.
• Cases: R V Burns,
• Case: Mwangi Nyagah V Republic,
• Possession
• Taking property puts the accused in possession of said property. Allegation of theft without
positive identification of the stolen item CANNOT amount to theft. (Ali v R)
• Possession of recently stolen items applies to theft. This is a rebuttable presumption.

(Kilome v R)
• Mens Rea Elements
• The Various Intents
• According to S. 268(2) of the Penal Code, the taking or conversion is fraudulent if it is

with:
 An intent to permanently deprive the general or special owner of the thing
 An intent to use the thing as a pledge or security
 An intent to part with it on a condition as to its return, which the person taking or
converting may be unable to perform
 An intent to deal with it in such a manner that it cannot be returned in the condition
in which it was at the time of the taking or conversion
 An intent to use it at the will of the person who takes or converts it, although he
may intend afterwards to repay the amount to the owner, in the case of money
• Fraudulent Intention
• The mens rea for theft has been termed as animus furandi, which means the intention to
steal
• In the case of R v Kantilal Raval, an employee was held to have taken goods animo furandi
after he took goods without instruction or permission and sold them, which meant that he
intended to permanently deprive the owner
• The animus furande may also be formed after an innocent taking and carrying away and
the same was asserted in the case of Bwire v Uganda
• Fraudulent Intention
• In determining whether the conversion was fraudulent or not, the court has to consider the
relevant circumstances
• In the case of Rwamba v R, the court held that once the distinction between the
will/intention of the owner and the will/intention of the accused is ascertained, it becomes
necessary to determine whether the accused acted under a colour of right
 If so, the conversion would not have proven to be fraudulent beyond reasonable
doubt and so the accused would not be liable
 Intent to Temporarily Deprive

• Intent to temporarily deprive the owner of the thing is insufficient
• The prosecution in most theft cases intends to prove that the accused wanted to deprive the
owner of the thing permanently
• Borrowing Money without Permission
• With respect to money, a person who takes the money without the owners consent cannot
plead as a defence the intention to repay the money afterwards
• Money here includes coinage, bank notes, cheques, currency notes, bank drafts and other
similar orders, warrants and requests for money and the same was upheld in the case of
Menzour Ahmed v R
• Borrowing Money without Permission
• It is therefore theft to use another’s money at one’s own will, without authority, even if
there is an intention to repay it later
• In the case of Menzour Ahmed v R an advocate was held liable for theft after he endorsed
a cheque he received from his client to settle a debt for the client. The advocate went on
to use the cheque to settle his own debt and it was held that his use of the money at his own
will fell within the confines of S. 268 (2) (e):-
 In the case of money, an intent to use it at the will of the person who takes or
converts it, although he may intend afterwards to repay the amount to the owner
 MALICIOUS INJURIES TO PROPERTY
• ARSON
 The offense of arson is created under section 332 of the penal code.
 Arson is committed where a person willfully sets fire to ay building or structure whether
complete or incomplete ;any vessel whether complete or not ; any stack of cultivated
vegetable produce, or of mineral or vegetable fuel; or a mine, or the workings ,fittings or
appliances of a mine.
 Its said to be an offence sui generis as its definition is not the same as at common law .
 The penalty for arson is life imprisonment.
 The actus reus for arson is the setting on fire all the subjects of arson listed in section 332
of the penal code.
 The thing in question must be actually burnt or charred and not merely scorched for it to
amount to arson.
 Attempted arson can be charged where a person attempts to set fire to any of the objects
listed in section 332 of the penal code.
 A court may infer that a person omitted arson if he/she is found with any items/property
stolen from the house at or bout the time of arson. The same was held in Rex V Bakari s/o
Abdulla
 The mens rea required for arson is willfulness
 The act must not be one that is caused by accident or involuntarily. This act must be
intentional, even reckless.
 However, the mere negligent act of causing a fire will not amount to arson because there
should be foresight of the consequences of the act.
 The other element of arson is that it must be an unlawful act.
• In Ghulam Rasul and another V Reginam; unlawful refers to the furtherance of an unlawful
act.
 the facts of the case are that the accused burned down his house after conspiring with
another person so he could collect the insurance money a if it was an accidental fire. The
court held that the act was unlawful as it intended to defraud an insurance company.
 In Ngugi s/o Gichinga V Regina; it is a crime to burn down one’s house. If the act endangers
the personal safety of another person or someone else’s goods, known to be in the house
are damaged.
• Malicious damage
 It is an offence for anyone to willfully and unlawfully destroy or damage any property.
 The penalty described for it is a maximum of five years imprisonment.
 The actus reus for malicious damage is destruction or damage of property.
 For the offense to be established, the property on question must be destroyed or damaged
and it must at least be proven that the property had depreciated in value however slightly.
 Masenu Butiti V Republic
 The mens rea for malicious damage is the same as those for arson.
 The damage must be caused willfully and unlawfully , ‘willfully’ meaning intentionally or
recklessly.
 In Rex V Mohamedali it was noted that although the accused person achieved a result he
did not intend, he achieved it in circumstances that indicate he was reckless as to the result
and to act recklessly is to act willfully.
• Defences.
 The defence available for malicious damage is honest claim of right.
 In Rex V Colonel H A Murray; that the defence is only available if it appears that the
accused had in exercise of his/her alleged right, acted bona fide and did no more damage
than could reasonably have been supposed to be necessary for its assertion.
 The other defence , stated in Heresi Analda V Republic, Kisumu; the appellant had been
convicted of damaging crops and a barbed wire fence belonging to the complainant.
 The appellant pleaded that it was lawful for him to , as an absentee landowner, to uproot
the crops and burry the wire and crops of an absentee trespasser.
 The court said that it would have been a defence in a circumstance where the appellant
believed that the complainant consented or if the appellant believed that his land was in
immediate need of protection and the means of protection used were reasonable as the
circumstances demanded.
 This was however not the case for the appellant.
• Aggravated forms of malicious damage
 The offence is aggravated and the penalties enhanced according to the nature of the
property damaged.
 For damaging a dwelling- house or vessel by use of explosives ,especially if there is a

person in the dwelling or vessel then it is punishable by life imprisonment.
 The maximum of 10 years applies for damaging a bank or wall of a river, canal, aqueduct
or inland water etc. or a railway, bridge, viaduct or aqueduct where the intention is to render
the destroyed thing dangerous or impassable.
 A maximum of fourteen years is given for the destruction of a will or register, or any part
of a railway or work connected with a railway.
• Setting fire to crops
• Does not amount to arson, but the elements are the same
• It must be a willful and unlawful
• Objects that are covered by the offence include;
1. A crop of cultivated produce (cut, picked or standing)
2. A crop of hay or grass (whether the natural or indigenous product of the soil, cut
or standing)
3. Trees, shrubs or saplings (indigenous or not) under cultivation
• Daudi Ogada v Republic
• In order for a suit to be successful the prosecution must prove that the a time was done
willfully and unlawfully
• He had attempted to burn grass in his own land but due too strong winds the fire spread to
the neighbour’s and burnt his cassava field
• It was to held to be unlawful as he had tried to burn grass in his own land and his conduct
of attempting to put the fire out showed he had no intention to burn the complainants plot
• Injuring animals
• This is the act of willfully and unlawfully killing, maiming or wounding an animal capable
of being stolen (horse, ostrich, fowl, camel, bull)
• Punishable for a maximum of 14 years imprisonment or in some cases 5 years

imprisonment.
• Mens rea elements : The same elements for Arson and malicious damage apply here, it
must be unlawful and willful
• The Attorney General v Ngaru s/o Kanyore it was held that he had not intended to hit the
cow and though his actions were voluntary they were not directed at the cow.
• Defences
1. Reasonable defense of property to a charge of killing/injuring another’s animal- must be

established that at the time of the action the animal was either attacking the accused animals
or there was danger of the animal attacking and injury was the only solution.
2. There was no other option than to shoot or hit
3. The protector must have some right of ownership in the animal they are seeking to
protect (has to have captured it Pierson v Post)
• Related offences
1. It is unlawful to intend to destroy or damage property with explosive substances
2. To willfully and unlawfully cause or attempt to cause an animal capable of being stolen to
get an infectious disease
3. To send a letter threatening to burn another’s house, barn, building, agricultural produce or
threaten to maim, injure or kill agricultural others cattle.
4. Sabotage – willfully and unlawfully destroy or damage property used in the service of the
government, local authority, or any property that is to the benefit of the community i.e.
water and electricity supply.
• If the sabotage is intended to cause danger to life or possible danger then the penalty
is life imprisonment while in other cases it carries a maximum sentence of 5 years
ROBBERY AND ROBBERY WITH VIOLENCE

 They are classified as forms of aggravated theft
 Combining elements of offences to a person and property specifically theft and assault
 ROBBERY
 Section 295 penal code
 robbery Any person who steals anything, and, at or immediately before or immediately after
the time of stealing it, uses or threatens to use actual violence to any person or property in
order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen
or retained, is guilty of the felony termed robbery.
 THEFT
 268. (1) A person who fraudulently and without claim of right takes anything capable of being
stolen, or fraudulently converts to the use of any person, other than the general or special owner
thereof, any property, is said to steal that thing or property.
 Note the difference
 Where robbery is then a form of aggrevated theft.
 Actus Reus
 The act of taking property from the owner using violence or the threat of violence.
 Joseph Kariuki v Republic
 The respondents car stalled and the appellants came and demanded money brandishing arms.
 She refused and well wishers came to her assistance
 On appeal it was held that since nothing was taken, the actus reus was absent.
 Their initial charge was reduced to attempted robbery.
For robbery to hold ground the elements of theft must be established.
 THE VIOLENCE FACTOR
 Section 295 of the penal code establishes a connection between theft and violence.
 It has to be immediately before or after the threat.
 Where property has been snatched without establishing assault, it is not considered as robbery.
Edwin s/o Matai v Republic
 The accused stopped and questioned the victim. They searched him and took his money and
when he requested for it, they refused to return it.
 On appeal it was held that was not robbery but demanding money with menace.
 Kenan Ouwuori & another v Republic
 The appellants posed as police and went to the complainants store and forced him into a car
and took him away where they demanded for money after pinning him down and slapping him.
 It was held that, there was sufficient evidence to support robbery due to the actual violence.
 So what is actual violence?
 Constitutes unjustified force, punishing a victim and tying him/her up.
 Violence must not be remote, but rather immediate.
 Gathungu Njuguna v Republic

 The complainant saw the appellant proceeding from the direction of his house carrying
something.
 On arrival, he found that his house had been broken into.
 He ran after the accused and caught up 100 meters away, the appellant resisted hitting back at
the complainant before he was subdued.
 The court held that he was not guilty of robbery since the act of violence on the part of the
appellant was too removed from the theft.
 So violence in reference to robbery
 For it to hold robbery must;
1. Retain to either the stolen property or to effect escape.
2. Violence must be directed towards the person in possession and control of the goods
 PLEADINGS
 In Mose v Republic, it was held that where a person is charged with robbery then there should
be no mention on the charge sheet of the use of violence, prior to or during the robbery.
 Robbery and Demanding with menace
 For robbery, the violence must be immediate, where this element of violence is absent the
charge is reduced to demanding with menace.
Nuru & another v Republic
 The appellants pointed a loaded gun at the victim and asked him to ‘buy his life’
 On hearing this the victims son retrieved money from the house and gave it to the appellants.
 Due to the lack of violence, their initial conviction of robbery was reduced to demanding with
menace.
 MENS REA ELEMENTS

 It is the mens rea required for theft, that is dishonesty and the intent to deprive the owner
permanently of the thing.
 It is accompanied by the intent to use violence either to obtain it or to prevent or overcome

residence.
 Mkwepu s/o Hamisi v Regina
 It was held that before a conviction for robbery can be justified the accused must be shown to
have formed an intention to steal at or before the time of his using violence or threat of violence
.
 BURDEN OF PROOF
 In Kenan Owori and another v Uganda it was stated , that the law does not require a higher
burden of proof than that of reasonable doubt in respect of serious offences like robbery.
 It merely requires greater vigilance in scrutinizing the evidence than it would be for very
offence.
 ROBBERY WITH VIOLENCE
 It is also referred to as aggravated robbery.
 it is defined in section 296(2) of the Penal Code.
 Robbery with violence is committed where the offender while committing the robbery;
a) Armed with a dangerous or offensive weapon or instrument.
b) Is in company with one or more person or persons.
c) Wounds, beats ,strikes or uses any other personal violence to any person at or immediately
before or after the time of the robbery.
 Wamai v Republic
 The court of Appeal held that a person commits the offence of robbery with violence if with
an intention to steal he commits one or more of the following acts is armed with a dangerous
or offensive weapon or instrument is in the company with one or more persons or immediately
before or immediately after the time of the assault he beats, strikes or uses any personal
violence to the person
 DISTINCTION BETWEEN ROBBERY AND ROBBERY WITH VIOLENCE
 In Johana Ndung’u v Republic the Court of Appeal sought to bring out the difference between
robbery and robbery with violence.
 One of the assailants was armed with a stick with which he used to hit a tourist on various parts
of his body leaving him with injuries.
 The other assailant had a knife with which he threatened the tourist while the third man took
away the victims camera and ran away.
 The trial court found that the accused had in fact committed the offence thus convicted of
robbery.
 The high court affirmed the decision.
 The court of appeal however differed with the lower courts opinions on the basis that the
proved facts established the offence of robbery with violence under section 296(2).
 Under section 295 simple robbery results when the accused uses violence or threatens to use
violence.
 Section 296(2) lists the elements that should be present for the offence to be robbery with
violence.
 All three elements need not be present for one to be convicted of robbery with violence.
 Silas Nachami alias Anyole and another v Republic
 Muthike v Republic
 THE ACTUS REUS ELEMENTS

 The theft committed under the defined circumstances that the offender is armed or in a gang
or uses actual personal violence.
Besigenesi v Uganda it was stated that theft or attempted theft was an essential ingredient of
the offence of aggravated property.
 A)USE OF ACTUAL OR PERSONAL VIOLENCE
 Is an aggravating factor.
 It is sufficient to sustain a conviction for robbery with violence.
 If however there is no proof of actual or personal violence but the other aggravating factors are
present the offence would be established
 In Jackson Maitha v Republic, it was stated that there must be proof that there was personal
violence on the complainant for a charge of robbery with violence to stand even if the other
aggravating circumstances are present is not good law.
 Section 296(2) talks about the offence of robbery with violence.
 Both the offence of simple robbery and robbery with violence involve some form of violence.
 Robbery with violence involve is supposed to define robbery with aggravated circumstances
as set out in 296(2) of the penal code.
 These two sections however need to be amended since there is no distinction between them as
seen in different cases in the court.
 Like in the case of Omar Kamanza v Republic of Mombasa where the courts did not find the
holding and scratching of the victims neck as wounding.
 This is not correct as these acts are capable of being construed as personal violence
 B) ARMED WITH A DANGEROUS OR OFFENSIVE WEAPON
 This is another aggravating factor.
 It is a requirement that the assailant be armed with a dangerous or offensive weapon.

 In Kimemia and another v Republic a dangerous or offensive weapon is defined as any article
made or adapted for use for causing injury to the person or intended by the person having in
his possession for such use.
 The courts however held that a knife is not made or adapted for use in causing an injury to a
person but it would nevertheless be a dangerous or offensive weapon if the assailant in welding
it in the course of a robbery intended to use it for causing injury to a person as stated in section
296(2) of the Penal code
 As for toy pistols the courts declined to treat it as a dangerous or offensive weapon for the
purpose of section 296(2) of the penal code and section 2 of the Firearms act.
 This however is contrary as seen in the case of Hemed v Republic where a toy gun is the same
as an unloaded or defective pistol on the mind of a victim who is unaware of the fact that it is
a toy, a sense of utter helplessness.
 This means that it does not matter if it a toy or real but what is of significance is the effect on
the victim
 It is important for the allegation of having a dangerous or offensive weapon to be specified for
the prosecutors case.
I. Daniel Morara v Republic
II. Nyambura v Republic
III. Ngome and another v Republic.
 It should be noted that the mere presence of a knife in the pocket of an assailant without
any knowledge on the part of the victim and no indication by the assailant that he had it,
does not suffice to allow a conviction for robbery with violence as it is not a dangerous or
offensive weapon
 KEMBOI V REPUBLIC
 The appellant grabbed a bag from the complainant and ran away. He was later caught and
taken to the police station. When the appellant filled the report there was no mention of the
appellant having a knife but the issue later came to light in the police station when he was
searched,
 He was then convicted of robbery with violence but on appeal the conviction was
overturned.
 IN COMPANY WITH ONE OR MORE PERSONS
 The accused being accompanied by one or more other persons ,by virtue of the decision in
JOHANA NDUNG’U V REPUBLIC. The fact that the accused was part of the gang is
sufficient to establish robbery with violence. It does not matter that they were not armed
nor did not use any personal violence , so long as the robbery was affected by a gang.
 In Anthony Mumuto Karumba v Republic , the trial court convicted the three of simple
robbery , even though they were charged with robbery with violence , on the grounds that
men were only armed with a toy pistol. When they appeal to the high court , their conviction
was set aside and substituted with that of robbery with violence , on the holding that when
an offender is in company of another during the process of a robbery , the offence
committed becomes robbery with violence. On appeal to the court of appeal, the holding
by the high court was upheld.
 MENS REA ELEMENTS
 The intent to steal combined with the intent to use violence to attain the objective.
 DOCTRINE OF RECENT POSSESSION OF STOLEN PROPERTY
 This applies to the offence of theft and those allied to it like robbery and robbery with
violence . It was held in Ogembo v Republic, the doctrine relied on as the only basis of a
conviction on a charge carrying a death sentence such as murder and robbery with violence
. It was emphasized that for the doctrine to apply, possession by the accused must be proved
and it must also be proved that the accused knew the property was stolen.
 The penalty for robbery with violence
 MANDATORY DEATH!!!
 The offence was created in 1971 at a time when there was an increase in the rate of violence
robberies in the country. Was introduced at the time as a deterrent measure.
 Being found armed /preparation to commit a felony.
 Having possession of an artifact for use in the course of or in connection with a

burglary, theft or cheating.
 a. Possession not at place of abode.
 This is under article 308 (2 ) of penal code.
 In the case of muiruri v republic, the accused was not at place of abode, he was found
with an article and the article was for use in the course for use in the course of or in
connection with a burglary, theft or cheating.
 In maina mungai v republic, the appellant was not at his place and was found in possession
of an iron bar. It was noted that the iron bar was not a dangerous weapon per se but it could
be used in the course of or in connection with at least one of the offence stated in section
308 (2) of penal code.
b. Articles must be adapted for use in burglary, theft etc.
 In muiruri v republic the appellant was found with screw drivers with the intent to commit
the felony of burglary or stealing, however the conviction was quashed on finding that the
weapons were not dangerous or offensive and neither were they adopted for committing a
burglary or theft.
 c. mere possession not sufficient.

 Mere possession of such articles are not sufficient, unlawful possession of implements of
housebreaking is considered dangerous to the society, if two persons are found in process
of housebreaking and one is found in possession
 of housebreaking implements, all may be found guilty of unlawful possession.
 The burden of proving lawful excuse for possession of such article rest with the accused.
D. the penalty.
This offence attracts a minimum of five to a maximum of ten years imprisonment if the accused
had been perilously been convicted of a felony related to property.
 OBTAINING BY FALSE PRETENSES
 THE ACTUS REUS ELEMENTS.
-False Representation.
Its defined in section 312 of penal code and its representation of a matter of fact which can be in
form of words , writing or conduct.
However statement of opinion is not a matter of fact.
-Existing Facts And Future Facts.
The statement must refer to a matter of fact of past or present, that is an existing fact. Statements
referring to the future are not included, a statement of intention about future conduct whether or
not it is a statement of existing fact and will amount to false pretense in criminal law.
-Promises And Statements Of Intention.
If a statement as to the future is coupled with a statement relating to the present, the offence may
be committed.
Saidi s/o ramji vReguna

The accused obtained money from a woman by false pretense that he could bring her son back to
life, it was held that though the statement represented the future it involves the presence that the
promisor had at the time powers required to do so.
 OBTAINING OR INDUCING THE DELIVERY OF A THING CAPABLE OF BEING

STOLEN
 It Requires that the accused should have obtained property from the victim or the victim
should have been induced to hand over property to a third party caused by the false pretense
of the accused.
 As per section 113 such offences are however limited to things/property capable of being
stolen , corporeal things or money.
 Lysenga v republic
 Appellant purported to be an agent of the addressed seeking to be given mail, the post
office clerk refused. The court held due to the fact that the appellant was yet to obtain the
document in the mail then he could not be charged with false pretense rather an attempt to
obtain through false pretense.
 Under section 313 of the penal code this charge is valid where the item is owned and not
possessed.
Ysuf Omari and another v republic
 CONTRACT OF SALE
 Liability for false acquisition will still be present where liability for contract of sale is
established.
Bushiri and others v republic
Appellants convince second-hand dealer to pay for goods, claimed to be in the village. After
receiving the money they were to produce the goods.
The court held that although they were liable under the contract of sale they still had a criminal
liability.
 POLICE TRAPS
 Where the accused is caused due to an elaborate plan of the police then his/her charge will
be attempt and not the principal offence.
Kagwa v uganda
 Accused offered to sell brass chipping claiming it was gold. Complainant suspects this and
reports it to the police, who set a trap and was charged with attempt.
 GOODS FROM A BAILEE
 Obtaining under false pretenses is not possible in this instance.
Hussein Ramadhan Mrangi V R
 appellant takes a coat to the dhobi for his employer, he later goes and picks it up with the
false pretense of the owners permission. He was then charged
 his charge of false pretense is quashed in favor of theft by servant
 PLEADINGS
 the prosecution must prove the particulars of false representation in the charge showing the
intent to defraud
 CHEQUES
 issuing a cheque presents an assumption of owning of an account with sufficient funds to

service that cheque if it is not a predated and is issued without funds in the account then
one could be liable for false representation
 With the exception of a post dated cheque
 MENS REA
 principal element intention to defraud and knowledge
 INTENT TO DEFRAUD
 It’s the intent to deprive another of an asset by means which are improper .
 It matures when a false statement is made or vital information is with held.
 Bhagwanji karsonji v rex
 Complainant gives the accused money to transfer to India, he misappropriates the money ,
alters a transaction receipt which he presents to the complainant leading him to believe he
sent he money. The courts found him guilty of the offence as he had intention to deceive
the complainant.
 KNOWLEDGE
 The maker of the statement must be aware of its falsity or not believe in its truth.
Athuman v republic
the appellant convinces the complainant to give him a stipulated amount and in exchange he would
cure her of the devil that had possessed her. After payment he did not complete his end of the
bargain. The court found his liable as he had knowledge of his deist.
RECENT POSSESSION OF STOLEN PROPERTY

1. The principle applies to cases of theft and related offences
2. It is a doctrine of presumption on fact arising under s.119 Evidence Act.
 Rule
 Where it is proved that property has been stolen and very soon after the accused is found
in possession, it is open to the court to find him guilty of stealing or handling by way of
receiving.
 The Presumption:
Where the accused has been found in possession of property very recently stolen, in absence of an
explanation to account for the possession, a presumption arises that he is either the thief or handler
by way of receiving.
1. This presumption arises only when the court believes that the person in possession of the
goods knew or had reason to know that they were stolen or unlawfully received.
2. This doctrine can't apply where the accused has not been identified as the thief or assailant
 Chaama Hassan Has a v Republic
 It was stated in Chaama Hassan v Republic that: Where the accused has been found in
possession of property very recently stolen, in absence of an explanation to account for the
possession, a presumption arises that he is either the thief or handler by way of receiving.
 Ogambo v Republic
 It was stated in Ogambo v Republic that the doctrine of recent possession of stolen
property can be relied on as the only basis of a conduct, carrying a death sentence such as
murder or robbery with violence
 Determining whether the possession points to theft or receiving;
 The court examines each case on its own facts.
 The factors that the court take into consideration are:
a) Nature of the property stolen
b) Whether it is of the kind that exchanges hands readily,
c) Nature of the accused’s occupation or business.
For the doctrine to apply;
a) Possession must be proved
b) Knowledge that the property was stolen must be proved.

What is the time frame of application of presumption?
 Recently stolen car --------------- 3 Months
 Debenture bond -------------------- 4 Months
 Articles of common usage------- less than 2 Months
 Stolen cattle------------------------- 4 ½ Months
 Stolen Fire arm-------------------- Less than 13 Months.
 Shabani s/o Juma v Reginam
 The accused had been charged with entering a dwelling house with the intent to steal. The
was evidence presented 2 Months after the stealing. He was seen wearing the garments
stolen from the house. The Court declined to rely on the presumption of possession because
2 Months was rather too long on a charge of common articles, he was charged with
handling of stolen goods.
 Rationale; Readily availability of articles in shops renders it unfavorable to rely on

presumption after 2 Months.
 Ngugi & Another v Republic
 The Accused had been found in possession of large number of coins of particular
denominations and assorted packets of cigarettes shortly after a violent robbery at a night
club where similar articles were reported stolen.
 They were found guilty of the robbery because they offered no explanation for possession
and further denied possession. Their appeal was dismissed.
 BURDEN ON THE ACCUSED
The accused has a burden to;
 Explain how he came to such possession and
 to prove that such possession is innocent.

 Yunge s/o Ndaki v Republic
The appellant had been convicted of being in possession of recently stolen cattle.
He was able to give a reasonable explanation that he had obtained the animal as dowry, this
explanation was supported by a testimony from his son-in-law.
 Recent possession and the presumption of innocence
1. The presumption of possession does not displace the presumption of innocence.
2. Presumption of recent possession is a presumption of fact, not an implication of law.
3. The burden remains with the prosecution/ state
4. the accused only explains the possession.
5. Reasonable explanation should not be rejected unless the prosecution proves it untrue.
6. If the accused can give an account of his possession, he may be excused.
7. It must be proved beyond reasonable doubt that such property is the same as the one alleged to
be stolen.
8. Evidence of other stolen articles in addition to those on which charges are based would be
admissible as evidence to show accused’s state of mind in relation to these articles, the dishonest
reception of which he is charged.
 DEFENCES
1. Honest claim of right
2. The accused can assert that he honestly believes to have lawful claim right, even though
the thought is unfounded in law or fact.
 Masesi v Republic
 The appellant having been charged with the theft of a goat on appeal stated that he had
picked the goat from his brother’s pen as part. payment of land he had sold his brother.
The appellants mother and sister testifying for him confirmed that the mother had
given her consent to him to take the goat away. The conviction was quashed because
theft had not been proved. not attacked by the complainant.
 CONVICTION FOR RELATED OFFENCES.
 A person charged with theft may be convicted of related offences where the facts
did not disclose offence, theft but disclosed that other. Similarly, a person may be
convicted of theft instead of related offence where the facts disclosed theft instead.
do not disclose that other offence but This power is donated to the Courts under
s.179 of the Criminal Procedure Code. For this power to be exercised under the
Criminal Procedure Code. provision, the other offence must be cognate to the offence
charged
 Kigen Arap Chemoiwa v R
 The Appellant was convicted of store commit the felony of thef breaking, with the
intent to t, but on appeal, the court found the offence charged was not disclosed
and thus the conviction couldn’t stand. The evidence disclosed theft, but the court
had no power to convict of theft but the court had no power to convict of theft upon
a charge of attempted store breaking. The court ordered that the charge be amended
to a charge of theft.
 Conviction Not Amounting To theft
 In s. 294 of the Penal Code, it is a misdemeanor for a person to unlawfully and

without color of right, but not so as to be guilty of theft.
 Taking or converting to one’s own use, any riding animal, vehicle, cycle, or vessel
is a misdemeanor. The provision covers situations where one borrows something
without permission but without an depriving the owner of it.
 R v Burns
 The police officer stationed in mwingi decided to take a trip to Nairobi for
personal reasons , without authority, he took a government car and station driver,
knowing well that even is he sought vehicle and consent he wouldn’t be granted one,
station driver. He returned after 2 days and was convicted for conversion . The
conviction was upheld and the Court held that the police officer had deprived the
station of the vehicle for 2 days it for his own purpose by using the vehicle without
intention of permanently depriving the station of it, and having acted inconsistently with
the owners right.
 Forgery, counterfeiting and related offences
 Forgery- definition
Forgery is the offence of making a false document with intent to defraud or deceive
The term document is defined by the evidence act at section 3 as
“any matter expressed or described upon any substance by means of letters, figures or marks, or
by more than one of these means intended to be used, or which may be used, for the purpose of
recording that matter
 Where forgery is found
 Forgery is defined in section 345 and 347 of the penal code
 The offence of forgery is created in section 349 of the penal code
 The making of a false document covers the making of a false document from scratch, the
alteration of or introduction of new material into a document and the signing of a document
in a variety of misleading ways
 When is the offence committed
 The offence is committed when a person makes a document purporting to be what in fact
it is not, or alters a document without authority in such manner that if the alteration had
been authorized would have altered the effect of the document, or signs a document in the
name of any person alleged to exist or in the name represented as being the name of a
different person from that of the person signing it and intended to be mistaken for the name
of that person; or in the name of a person personated by the person signing the document
 Prescribed penalty? A maximum of three years imprisonment
 Forgery- elements
 1. There must be a document
 For there to be forgery, there must be a document (existing)
 It is NOT forgery to make something which is not a document
EXAMPLE
The making of a picture pretending to be that of a famous artist is not forgery since picture per se
is not a document. Thus establishing the fact that the item that is being said to be forged must fit
as a document
 The document made must be false for it to be a forgery
 The making of a false document right from scratch is the making of a document purporting
to be what it is in fact not- a false document tells a lie about itself. This is different from a
document which contains a lie
 Buigamu V Uganda{1973} ea. (Russel ag j)
 The falsity must be of the purport of the document, not its content.
 The appellant had been convicted of forgery and theft. He had received a sum of kshs 30,00
and had issued a receipt in that sum, but then filed in the duplicate of the receipt with the
figure of kshs 15.00. the difference of kshs 15.00 was not accounted for.
HELD
 it was held on appeal that he has not committed forgery for the document he issued did
not tell a lie about itself. Indeed, it was what it was meant to be, a receipt
 2. Alterations
 the making of an alteration in a document amounts to the making of a false document

provided that the alteration, had it been authorized, would have altered the effect of the
document
 The element of alteration precludes from those cases where the alteration would be
irrelevant.
 Alteration has to be relevant
 A minor and unimportant change to a document does not make the document false
 The unauthorized introduction of fresh matter into a document during the course of its
being drawn up, constitutes the making of a false document provided that, the insertion
would, had it been authorized, have altered the effect of the document
 Case law
 Kuria Wagachira v R {1957} EA 808 (sir Kenneth O’ Connor CJ and Rudd J)
The accused, in an effort to make it appear that he had come by a bicycle lawfully, altered a cash
sale receipt from a cycle mart. He erased a pencil entry on the receipt referring to a cycle bell and
wrote in ink a non-existent sale of a bicycle in its place
HELD
The cash receipt was a false document
In Naurang Sing s/o Hukam Sing v R:
 it was held that entry of a false date for the execution of a document, where the date is
material, makes the document false.
 The accused should have filed his written statement of defense in a civil suit by a certain
date
 Early in the morning of the day after the due date he took his statement of defense to the
courts registry, and whilst nobody was presenting, he stamped the document with the
official date stamp, indicating that the document had been received on the due date and left
the document on the clerk’s desk
HELD:
 It was held that amounted to forgery as the unauthorized alteration purported to alter the
effect of the document by making it appear as a document delivered within time. The
authorization if authorized, had the effect of indicating that the defense had been dully
delivered to court to a person who was authorized to accept it on due date shown on the
stamp
 3. False entries
• It is not forgery to make insertions of false entries in a cash book
• For forgery it is the false making of a document purporting to be that which it is not
• It is not the making of an instrument which purports to be what it really is, but which
contains false statements
 Chilemba v republic
 It was stated that for a document to constitute a forgery as defined in the Tanzanian
equivalent of section 347 of the penal code, it must tell a lie about itself, which is known
in legal parlance as auto mendacity.
 On the facts, it was held that vouchers prepared by the appellant contained false statements,
but that did not constitute forgery as the vouchers were what they purported to be, vouchers.
It was stated that a false claim for an allowance is not a forgery as the documents does not
lie about itself.
 However it was pointed out that the offences of forgery and fraudulent false accounting are
not mutually exclusive, and the making of false payment vouchers constitutes forgery as
well as fraudulent false accounting
 Mbande v republic
 It was held that certain money orders wee forgeries in that details contained in them were
inserted without or in excess of authority. The accused had only a limited authority, which
he exceeded.
 The money orders told lies bout themselves in a material particular, that is that they were
valid orders issued by authority and on behalf of the post office which they were not.
 It was held that the accused were guilty of an offence under the Tanzanian equivalent of
section 347(c) of the penal code.
 The offence of forgery under section 347(c) of the penal code is committed where false
insertions, alterations, or erasures are made or introduced in to a document without
authority. It presupposes a situation where a document is being prepared under someone's
authority and the maker introduces unauthorized matter in it
 Jurisdiction
According to des raj Sharma v Reginam
 It would appear that on a charge of forgery, proof of the commission of the alleged forgery
within the jurisdiction, it is immaterial whether the forgery was committed inside or
outside the jurisdiction of the court
 The above case was followed in musisi v republic where it was said that a person who is
himself in one country may, by the hands of an innocent agent, commit a crime in another
country though he cannot be tried till he comes there.
 The appellant had posted invoices forged in Uganda as part of a false claim on the Kenya
government, his employer. He was convicted in Kenya on charges of uttering the invoices
and attempting to obtain money by false pretenses. His appeal pegged on the ground that
the Kenyan court had no jurisdiction to try the offence was dismissed.
 Possession of a forged document
According to Alley Ali and another v republic,

 A reasonable inference can be drawn that an accused person forged the document even
without proof of the handwriting, where it is established that a forged document was at all
material times in the possession of the accused person
 False signature
 Signing may make a document false where the person signs in the name of another without
that others authority, in the name of a fictitious person alleged to exist, signs in the name
represented as being the name of a different from that of the person signing it and intended
to be mistaken for the name of that person, and signing in the name of a person personated
by the person signing the document
 It would also be a false document where a person signs it intending that his signature be
mistaken for that of somebody of else
 It was held in Makanji chotabhai Patel v Regina KLR that it is not forgery, in the absence
of personation, for a person to sign a document in the name of another person with the
authority of that person.
 The appellant had obtained an entry permit to Kenya for someone by sending a letter to the
immigration authorities allegedly signed by someone else purporting to be written by that
other person and offering employment by that other to the other person for whom the entry
permit was being sought.
 The purported signatory of the letter denied writing and signing it, whereupon the appellant
was convicted of the forgery of the letter.
 On appeal it was held that even if the letter contained a false statement, it would not be a
forgery if it was signed by the purported writer or by the appellant with the purported
writers authority.
 The conviction was quashed on the basis that there was no proof that the appellant had
signed the letter
 Intent to defraud or deceive

 Intent to defraud was defined in mbunde v republic
To deceive was said to induce a person to believe that a thing is true which is false
The person practicing the deceit knows or believes it to be false
To defraud is to deprive by deceit
 To deceive is by falsehood to induce a state of mind, while to defraud is by deceit to induce

a course of action
 The distinction between this two terms is important for the purpose of forgery offences
 It was said in Omar bin saleh v rex that it is the intent to deprive a person by deceit of
some economic advantage or inflict upon him some economic loss
 Section 348 of the penal code provides that an intent to defraud is presumed to exist if it
appears that at the time when the false document was made, there was in existence a
specific person ascertained or unascertained capable of being thereby defrauded.
 The burden of proof is therefore on the accused to rebut the assumptions by showing that
the document was issued in circumstances which eliminated the possibility that it might
deceive
 Section348, however, provides that presumption is not to be rebutted by proof that the
accused took or intended to take measures to prevent such person from being defrauded
 In fact, nor by the fact that he had or thought, he had a right to the thing obtained by the
false document.
 Omar bin Saleh v Rex
 The appellant was caught by the police illegally transporting ghee in a motor vehicle he
produced a piece of paper purporting it to be a permit in order to induce the police to allow
him to proceed. the police were no deceived and he was arrested, charged and convicted
of uttering a false document.
 It was held, on appeal, that the uttering was done fraudulently within the meaning of the
relevant provision, and it was not necessary for the state to prove that the appellant intend
to cause pecuniary or economic loss to some person.
 The intention clearly was to mislead the police and to cause them not to prosecute the
appellant for the illegal movement of the ghee
 Aggravated forgeries
 Forgeries of a will, document of title to land, judicial record, power of attorney, bank note,
negotiable instrument, policy of insurance, or cheque attract the penalty of a maximum of
life imprisonment by virtue of section 351(1) of the penal code
Katengele v republic
It is forgery unlawfully to fill in the sum on a cheque signed in blank
If a cheque is payable to one person, and it is related counterfoil shows that it is paid to another
person, the cheque is a forgery in that it tells a lie about itself.
 The forging of a judicial or official document, or of any stamp used for revenue or
accounting by any government, or the fraudulent use or removal of any such stamp is an
offence under 351 of the penal code. And it invites a penalty of maximum of seven years
imprisonment
Mania v republic
 Held that the most important ingredient of the offence of possessing the forged currency
contrary to section 359 of the penal code, is that the accused should know that the bank
note or currency is forged.
 It is also the duty of the prosecution to proof such knowledge, and the burden of proof
shifts to the accused only where he alleges lawful possession or excuse to possess such
forged currency
 Uttering forged or false documents

 Section 353 of the penal code makes it an offence to knowingly utter a false document.
 The penalty for the offence is the same as if the accused had forged the document:
imprisonment for a maximum of three years.
 The word ”utter” means using or dealing with and attempting to induce any persons to use
or deal with or act upon the document or thing in question.
Alley Ali and another v republic
Held that to constitute the offence of uttering a false document. The document must be false in its
material, particulars about itself, the person uttering it must have knowledge of its falsity; and he
must utter it fraudulently with the intention to make another person to act to his detriment.
 The mens rea required is that of intention and knowledge
 In Kamau v republic, it was held in respect of uttering offences, that the court must be
satisfied that the person uttering it knew it was forged. And that he uttered it with intent to
defraud.
 It was further held that a person with intent to defraud who utters a forged document need
not to have forged the document himself, as he could have received it already forged by
someone else.
 Section 354 makes it an offence to utter any cancelled or exhausted documents.
 It is also an offence to procure another person to sign or execute a document by means of

any false or fraudulent representation as to the nature, contents or operation of the
document
 The altering of crossings on cheque: the making of documents without authority; the
demanding of property upon forged testamentary instruments; the purchasing, receiving or
possession of forged bank notes; the falsification of public money warrants by civil
servants.
 And the falsification of any register or record kept by lawful authority.

 It was held in Uganda v Mbazira , that a bank note is nota document, and its production
anywhere cannot form the basis for conviction of uttering a false document.
 It was stated that when the accused tenders a banknote at a pay point, he tenders the same
not as a document, but as money in exchange for goods or services or payment of a debt.
 COUNTERFEITING
Counterfeiting coin
 It is an offence under section 365 of the penal code to make or begin to make a coin.
 The felony is punishable by a maximum penalty of life imprisonment
 A counterfeit coin is defined in section 364 of the penal code to mean a coin which
resemble or apparently intended to resemble or pass on as genuine coin
 It is an offence under section 373 of the penal code to utter any counterfeit coin, knowing
it to be counterfeit.
 James Okwanyi v R
 The appellant was convicted of using a counterfeit coin. Contrary to section 370(e) of the
penal code, now 367(e).the appellant had passed a forged currency note of shs 20.00
value.it was held that he had not used a counterfeit coin since a currency note is not a coins
defined in session 364 of the penal code.
 It was further held that the appellant should have been charged with uttering a forged
currency note.
 It was also held that the words, “ figures, letters, marks lines or devices’ in section 367 of
the penal code mean such things as watermark background and the like.
Related offences are created in sections 366 367 367A 368 369 370
 Counterfeiting stamps
 It is an offence to make, use, posses or dispose of any die, plate or instrument capable of
making an impression resembling any stamp, whether impressive or adhesive, which is
used for the purpose of public revenue or postal administration of the state or of any foreign
country .
 It is also an offence to knowingly possessor dispose of any stamp made by such die ,plate
or instrument .
 It is an offence for any person fraudulently or with intent to cause loss to the public revenue
,to use for any purpose a stamp issued by the government for purposes of revenue which
he knows to have been previously used.
 Counterfeiting trade marks
 It is an offence to forge or counterfeit any trade mark if it is done with intent to defraud or
to enable another to defraud any person.
 The wrongful application of any trade mark ,genuine or counterfeit, may also be a
misdemeanor if done with intent to defraud
 personation
 It is an offence for a person with intent to defraud any person to falsely represent himself
to be someone else, living or dead
 It is also an offence to personate another person named in any certificate, and the offender
is guilty of an offence of the same kind, and id liable to the same punishment, as if he had
forged the document.
 It is also an offence for any person, for the purpose of obtaining any employment to utter
any document of the nature of a testimonial of character given to another person
 The person who sells or lends any certificate or testimonial for the purposes of personation
is also guilty of an offence
 Personation of a public officer is also an offence, but falling under another heading.
Offences Against Public Order

INSURBORDINATION & DISOBEDIENCE
Insubordinate behaviour among members of the armed forces is outlawed by Section 82 (1) 0f the
KDF Act.
Offence committed by a person who strikes or otherwise uses violence to his superior officer, or
uses threatening or insubordinate language to his superior officer.
Attracts a penalty of life imprisonment.
BUT
If it isn’t committed during active service and did not involve violence, it would be a lesser offence
attracting a penalty of up to five years imprisonment.
DISOBEDIENCE
Targeted by Section 78 of the KDF Act.
Committed by a person who in wilful defiance of authority disobeys any lawful order given or sent
to him personally.
Attracts a penalty of life imprisonment.
Where disobedience is wilful or through neglect, it becomes a lesser offence attracting a

punishment of imprisonment of up to five years.
If latter offence is not committed within a period of active service, it is a lesser offence whose
penalty should not exceed imprisonment for a period of two years
DESERTION
Section 74 of the KDF Act criminalises desertion by members of the armed forces.
Targets the deserters themselves, as well as persons who persuade or procure them to desert.
Attracts a penalty of discretionary life imprisonment.

SOME ACTS CONSTITUTING DESERTION
1. Leaving the defence forces permanently without authorization
2. Omission or failing to join or re-join the forces when commanded
3. Officer enlisting in or entering the forces without resigning his commission
ETC (Page 240, Musyoka)
PROHIBITION OF PUBLICATIONS
Section 52, 53 and 54 of the Penal code, give a variety of powers to the relevant minister of state
to prohibit the importation of a publication or to declare it a prohibited publication, if such act is
necessary for maintenance of public order, public health, public morals or security of Kenya.
IN 2014, THE KENYA FILM CLASSIFICATION BOARD BANNED ‘THE WOLF OF WALL
STREET’ BECAUSE IT CONTAINED “EXTREME SCENES OF NUDITY, SEX, ALCOHOL,
DRUG TAKING AND PROFANITY.”
ADMINISTRATION OF UNLAWFUL OATHS
Sections 59 – Makes it a felony for a person to be present at and to consent to the administering of
an oath to commit capital offences.
The penalty for the offence is life imprisonment.
This covers a person who takes any such oaths without being compelled.
Defence of compulsion available to a person who stands accused of this offence and alleges that
compulsion was employed to force him to take the oath, but by virtue of Section 63, it will not
avail unless the person allegedly compelled made a report to the relevant authorities within five
days, or, if he was prevented by actual force or sickness, within fourteen days after the termination
of the prevention.
Section 60 – Administrator of oaths to commit capital offences commits a felony punishable with
death.
Section 61 – Covers administration of oaths to commit other offences, and creates a felony whose
penalty is imprisonment for up to ten years.
Defence of compulsion available to a person who stands accused of this offence and who alleges
that he was compelled to take the oath, it will not avail, by virtue of the provisions in Section (63)
which we are already familiar with. (Dedan Mugo s/s Kimami v Rex (1951) reinforces this.)
Section 62 – Takes care of situations where compulsion is employed in the administration of oaths.
Penalty prescribed for the offence is a maximum of ten years imprisonment’.
Section 62 (2) criminalises the act of being present and consenting at an event where another
person is being compelled to take an oath.
A person guilty of this offence is liable to imprisonment for up to seven years.
Section 63 – A person who is present at an oath – taking ceremony is deemed to have consented
to the administering of the oath, unless he reports the matter to the relevant authorities within five
days
UNLAWFUL DRILLING
Section 65 – Criminalises unlawful military training or drilling
Penalty prescribed for the offence is imprisonment for up to seven years.
Section 65 (2) – Targets those who are trained in such drills, and makes it a misdemeanour.
When such drills have to be conducted, the permission of the minister responsible is necessary
ALARMING PUBLICATIONS
Section 66 – It is an offence to make alarming publications, by way of a false statement, rumour

or report which is likely to cause fear and alarm to the public or to disturb public peace.
Section 66 (2) – It is a defence for the publisher to show that measures to verify the accuracy of
the report, statement or rumour, and that he was led to reasonably believe that the same was true
The wording of the provisions places the burden of proving the defence on the accused.
OFFENCES AFFECTING EXTERNAL TRANQUILITY
1. Defamation of Foreign Princes
2. Foreign Enlistment
3. Piracy and Armed Robbery against ships
4. DEFAMATION OF FOREIGN PRINCES
Section 67 – Makes it a misdemeanour to defame any foreign prince, potentate, ambassador or

other foreign dignitary with intent to disturb peace and friendship between Kenya and the country
to which such dignitary belongs.
2. FOREIGN ENLISTMENT
Section 68 – Criminalises enlistment of Kenyan citizens in foreign forces,
Designed to prevent Kenyan citizens from engaging in military activities hostile to friendly foreign
states.
3. PIRACY & ARMED ROBBERY AGAINST SHIPS
Section 369 of the Merchant Shipping Act, defines the offence of piracy as any act of violence or
detention, or any act of depredation, committed for private ends by the crew or the passengers of
a private ship or private aircraft directed: against another ship or aircraft, or against persons or
property in a place outside the jurisdiction of any state, any voluntary participation in the operation
of a ship or of an aircraft with knowledge of the facts making it a pirate ship or aircraft, or any act
of inciting of inciting or intentionally facilitating any of these acts.
Section 371 of the Merchants Shipping Act – The penalty for the offence of piracy is life
imprisonment.
Section 369 of the MSA – Defines armed robbery against ships as any unlawful act of violence or
detention or, any act of depredation, or threat thereof, other than an act of piracy, directed against
persons or property on board such a ship, within territorial waters or waters under Kenya’s
jurisdiction.
Section 369 of the MSA – Penalty for armed robbery against ships is life imprisonment.
OFFENCES AGAINST PUBLIC TRANQUILITY
1. Offences Relating to Unlawful Societies
2. Subversive Activities
3. OFFENCES RELATING TO UNLAWFUL SOCIETIES
Section 4 of the Societies Act – Defines an unlawful society as one which is not registered or
exempted from registration.
Section 4 (4) of SA – It is an offence for a person to collect or invite subscriptions or donations to

the funds of such a society or even organise or take part in the activities of such an organisation,
unless the Registrar of Societies has given written authority for such activities.
The penalty for such an offence would be a fine or imprisonment for a term not exceeding three
years or to a fine or both.
Section 6 of SA – Prohibits membership to to such societies and also attending and allowing
meetings of such societies in his/her premises.
2. SUBVERSIVE ACTIVITIES
Section 77 (1) – Provides for the offence of subversion.
Definition on page 214 (Musyoka)
UNLAWFUL ASSEMBLY
Section 79 – Makes participating in an unlawful assembly a misdemeanour, punishable by up to a

year in prison.
Section 78 (1) defines unlawful assembly. (Musyoka, page 244).
It does not matter that the original assembly was lawful, so long as they conduct themselves in the
manner defined in Section 78 (1).
CHANDE BIN KHAMIS MTUMBATU V R (1961)
The provision in Section 78 (1) was construed in this case.
Stated that there are two ways of forming an unlawful assembly;
1. Assembling with intent to commit an offence.
2. Assembling with intent to carry out some purpose followed by conduct likely to cause a
breach of peace.
Where accused is charged with assembling with intent to commit an offence, the offence which it
is alleged the accused intended to commit should be specified.
FIELD & ANOTHER V THE RECEIVER OF METROPOLITAN POLICE (1907)
It must be shown that at least one person in the neighbourhood reasonably apprehended a breach
of the peace.
A breach of the peace is any offence against public order, but doesn’t cover disturbances affecting
private rights.
Therefore, if what was feared was an outbreak of thefts and housebreaking, the offence of unlawful
assembly would not be established, unless it is proved that these acts were to such scale as to
endanger public order.
Criminal liability attaches on all those who participate in the assembly in any way, or who associate
with and participate in the purposes of the assembly.
A mere spectacle isn’t liable.
RIOT
Section 80 – A person participating in a riot is guilty of a misdemeanour.
Section 78 (1) – Riot is the situation when the unlawful assembly begins to execute the purpose
for which it is assembled by committing a breach of the peace to the terror of the public.
Therefore, to establish the charge of riot, prosecution must prove both the elements of unlawful
assembly and those of a riot.
Sections 83, 84, 86 & 87 - Define more aggravated forms of riot, and prescribe more severe
penalties.
This is where the rioters continue to take part in the riot, and proceed to destroy property, after a
proclamation is made pursuant to Section 81 of the Penal Code, for the assembly to disperse
peacefully.
OFFENCES ONVOLVING OFFENSIVE WEAPONS
Sections 88 – It is a misdemeanour to go armed in public to the terror of any person
Section 89 – It is an offence to have unlawful possession of firearms, offensive weapons,

ammunition, incendiary materials or explosives in circumstances which raise reasonable
presumption that these things are intended to be used, or have been recently used in a manner or
for a purpose prejudicial to public order
This is a felony attracting a term of imprisonment not exceeding 5 years.
Section 89 (2) – Defines the offence of consorting with or being in the company of a person who
is in contravention of Section 89 (1)
Offence attracts a penalty of imprisonment for up to five years.
FORCIBLE ENTRY & DETAINER
Section 90 – Criminalises the taking or possession of land or tenements in a violent manner, even
if the accused is entitled to enter the land.
This is a misdemeanour.
Offence not committed where the land or premises belongs to the accused but are in the custody
of his servant or bailiff.
Section 91 makes it an offence to retain property without colour of right of any manner likely to
cause a breach of the peace against a person entitled by law to the land.
Criminal trespass is the offence of entering or remaining on any property in the possession of
another with intent to commit an offence or to intimidate or annoy or insult any person in
possession of such property.
CRIMINAL TRESPASS UNDER THE TRESPASS ACT
Section 3 (1) of the Trespass Act, creates the offence of trespass upon private land, which is a
misdemeanour committed when a person who has no reasonable excuse enters or remains on or
erects any structure on land or cultivates or tills or grazes livestock or lets stock on private land
without the consent of the occupier.
TAMPERING WITH FENCES
Section 4 of the TA criminalises tampering with fences.
Attracts a penalty of up to six months imprisonment or a fine or both.
The offence is aggravated where the property in question is used as a human dwelling or a place
of worship or as a place for the custody of property.
Aggravated form attracts a penalty of imprisonment for up to a term not exceeding one year
Section 6 – Trespass with intent to steal stock or agriculture procedure is an aggravate form of
trespass.
Section 10 – Proceedings in respect of an offence under the Act may be brought by the owner or
occupier of private land or by a police officer with or without the consent of the occupier or owner.
For most of the offences created under the trespass Act, burden of proof has been placed on the
accused by virtue of Sections 3 (2), 4, 6 (2), 7 (1) and 8 of the TA.
NYAMWAYA V KISUMU COUNTY COUNCIL (1972)
Prosecution must first prove beyond reasonable doubt that the accused was on private land, before
there is a burden on the accused to show reasonable excuse or consent.
AFFRAY
Section 92 – Committed by a person who takes part in a fight at a public place.
A person who actively encourages participants in a fight also commits the offence of affray.
REPUBLIC V ISMAEL (1968)
Court identified 3 ingredients of the offence of affray which must be proved as;
1. That there was a fight.
2. That the accused took part in it
3. That the fight occurred in a public place
SELF DEFENCE
A person who fights in self defence cannot be guilty of affray.
A person can only be guilty of affray where he voluntarily enters into a fight.
The acquittal of one of two combatants vitiates the conviction of the other (Republic v Mohamed,
Musyoka pg. 250)
CHALLENGE TO DUEL
Section 93 – It is an offence to challenge another to duel, or to provoke another to such duel.
This relates to a duel in private as opposed to a duel in public.
See Mule v Republic (1983) (Pg. 250, Musyoka)
OFFENSIVE CONDUCT CONDUCIVE TO B REACHES OF THE PEACE
1. Insulting or Abusive Acts.
2. Threatening Breach of Peace.
INSULTING OR ABUSIVE WORDS

Section 94 –Committed by a person who in a public place or at a public gathering uses threatening,
abusive or offensive or insulting words or behaviour with intent to provoke a breach of peace or
whereby a breach of peace is likely to be occasioned.
BAILLIE V KAMAO & ANOTHER
Three elements;
1. An act or words amounting to an insult.
2. Such an act or words were likely to provoke the person to whom they were addressed to
commit a breach of the peace.
3. The person doing the act or uttering the words knew such a result was likely to ensue or
intended that it should ensue
It is an essential ingredient that it should be committed in a public place.
R v Issa Ndarama & others (1958), Page 251.
2. THREATENING BREACH OF THE PEACE
Section 95 – Occurs when a person threatens breach of the peace.
Envisages 4 scenarios;
1. Section 95 (2) – Where a person uses obscene, abusive language, to his employer or to any
person placed in authority over him by his employer, in such manner as to a breach of the
peace.
2. Where a person brawls or in any other manner creates a disturbance in such a manner as is
likely to cause a breach of the peace. (Case law, pg 252, Musyoka)
3. Section 95 (2) – Where a person with intent to intimidate or annoy any person, threatens to
break or injure a dwelling house
4. Where a person with intent to alarm any person in a dwelling house discharges a loaded
firearm or commits any other breach of peace.
All these are misdemeanours attracting penalties of imprisonment for up to six months for the
offences created under Section 95 (1), and three years for the offences defined under section 95
(2)
Where the conduct of the accused raises a possibility of a future breach of the peace, it would be
unwise to charge him with an offence under Section 84 or Section 95.
INCITEMENT TO VIOLENCE & DISOBEDIENCE
Section 96 – Ingredients of the offence include;
1. Incitement to bring death or physical injury to any person or to any class or community of
persons.
2. Incitement to destroy or damage property.
A person who has a lawful excuse for hois proposal or incitement to violence does not commit the
offence.
The burden of establishing such lawful excuse lies with the accused.
Case law (pg, 253, Musyoka)
WRONGFULLY INDUCING A BOYCOTT
Section 98 – Responsible minister empowered on certain grounds to designate or declare, through

a gazette notice, a boycott, whether underway or threatened or likely to be held in Kenya, unlawful.
The range of boycott actions targeted is listed in Section 98 (1) and includes; (Musyoka pg. 254)
Misdemeanour of wrongfully inducing a boycott is defined in Section 98 (2) and it is committed

when, after the minister has designated a boycott, a person advices, induces or persuades, or
attempts to advise, induce or persuade any person or class of persons to take any actions specified
in the notice by the minister designating the boycott.
Other Offences
Offences Relating to Corruption
Defamation
Traffic Offences

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1|Page Lemuel Abishua

Sources of Criminal Law

o Penal Code CAP 63

Actus Reus Elements

Events or States of Affairs

Being in a Certain State

o E.g over speeding in a populated area is reckless

o Failure to discharge that duty

Presumption arising from recent possession of stolen property

Burden and Standards of Proof

Burden on the State

BURDEN ON THE ACCUSED

Persuasive and Evidential Burden

Ignorance of the Law

Time to Raise the Issue of Insanity

INTOXICATION AMOUNTING TO INSANITY

INTOXICATION NEGATIVING MENS REA

INTOXICATION & PROVOCATION

WITCHCRAFT AND PROVOCATION.

3. There must be an immediate provocation.

REFUSAL FOR SEXUAL INTERCOURSE.

INSULTS OR HARSH WORDS

WRONGFUL ACTS TO PROPERTY

Defence of Person or Property

Defence of Another Person

DEFENCE AND PROVOCATION

Bona fide Claim of Right

Principles for defense of claim of right.

 For defence of compulsion to be accepted, an accused person has to prove that

Compulsion in administration of oaths.

 It is reported to the authorities within 5 days.

Compulsion as a mitigating factor

Reasonable precautions and due diligence.

Acts Independent of the Will

MISTAKE OF FACT AND WITCHCRAFT

MISTAKE OF FACT AND MISTAKE OF LAW

Innocent Intention and Absence of Mens Rea

Reasonable Precautions and Due Diligence

JOINT OFFENDERS & COMMON INTENTION

Proof of Common Intention

Passive Presence not Sufficient

Withdrawal from Common Purpose

Acquittal of one of The Offenders

AIDERS & ABETTERS

Duty and Omission

Counsellors, Procurers, Instigators & Inciters

Instigators and Inciters

ACCESSORIES BEFORE &AFTER THE FACT

Accessory After the Fact

ACCOMPLICES & CONSORTEES

and he is therefore not an accomplice and corroboration of his evidence is not

 Rex v. Scofield (1784)

ELEMENTS OF ATTEMPT LAW

ATTEMPT AND MERE PREPARATION

SOLICITATION, INCITEMENT & PROCURATION

FAILING TO PREVENT AN ENVOY

OFFENCE IS COMMITTED BY TWO OR MORE PERSONS

Punishment, Sentences and Post-Conviction

Punishments for children

Punishments for the defence forces

 Misconduct in the action

Convictions on several capital offences

6. The moral blame worthiness of the accused

3. Removal from Kenya